Below is my column in the Hill on the increasingly divisive rhetoric and actions taken on Capitol Hill. Rather than plot a course to between greater unity, many are seeking to muscle through extreme measures that will only further aggravate and deepen our divisions. The media from the New York Times to the Los Angeles Times have run editorials encouraging aggressive moves to secure control of the Senate, including the ending of the filibuster. That move would make every vote a muscle play — producing sweeping changes in a country that is clearly divided and seeking political compromise.
Here is the column:
There are times when being a law professor ruins everything. You go to a great movie with your wife and get a sharp elbow after whispering in the theater that the character really cannot question a witness like that. Or you watch a football game with friends and try to explain that the cameraman wiped out by the running back would have a great torts case.
Inauguration are no different as when Chief Justice John Roberts flubbed the wording on the oath for President Barack Obama. Then, this week, in the middle of one of the more beautiful inaugurations in history, I fixated on Sen. Amy Klobuchar (D-Minn.) announcing that she would be the first person to call Joe Biden “Mr. President.” She was wrong, factually and constitutionally. Biden had been sworn into office early, by about ten minutes to noon, and Chief Justice Roberts had just called him “Mr. President.” Yet the true president at that moment was in Florida: Donald Trump legally would remain in office for ten more minutes, under the 20th Amendment.
It will be a fun bit of trivia for constitutional law geeks, but it was also telling. Everyone in Washington, including many in Republican leadership, were a bit too eager to begin the Biden administration and to end Trump’s. However, it should be a cautionary tale, too. Democrats are moving aggressively to muscle through an ambitious agenda in Congress that may raise serious constitutional questions and cause even greater political divisions.
After noon, the real President Biden set to work on a host of executive orders. In the first two days, Biden signed almost three dozen new executive orders, ranging from stopping deportations of undocumented persons to extending a freeze on student loan payments, from mandating mask-wearing to guaranteeing access by transgender children to bathrooms and sports. Some of these executive orders, if implemented directly, could be challenged in court. However, Trump and other modern presidents have increasingly used such orders to set new priorities and policies.
What is happening on Capitol Hill is far more concerning. Democratic leaders are pushing Biden to act unilaterally, as did President Obama when faced with a divided Congress. Obama actually used his State of the Union address to declare his intent to circumvent the legislative branch after it refused to pass his legislation in areas such as the environment and immigration.
Senate Majority Leader Chuck Schumer (D-N.Y.) and other Democrats have called on Biden to simply cancel student debt up to $50,000 per student, wiping out billions in debt and potential federal revenue. That is a major unilateral decision when the national debt is approaching $28 trillion — one done without debate or deliberation. (In fairness, students are being crushed by such debt during the pandemic and, more importantly, Congress previously gave broad authority to the Education secretary over debt management.)
Other calls for sweeping new decisions, from immigration to wealth distribution, are more concerning. Democrats insist they won both houses and the White House and, as President Obama once said, “elections have consequences.” However, this election was not an overwhelming victory or endorsement. Rather, it shows a country divided virtually down the middle. While voters clearly rejected Trump and his controversial leadership, they voted widely for Republicans down the ticket. The House saw a significant loss of Democratic seats and has one of the slimmest majorities in modern history. The Senate is divided literally in half, and a majority is only possible with Vice President Harris voting to break ties on the floor.
Clearly, voters did not support the agenda of the far left, and many seem to have preferred divided government. Yet, many on the left do not want to wait for a broader mandate to implement sweeping changes. They are pushing for the District of Columbia to be made a state, likely adding a two-vote majority for Democrats in the Senate. At the same time, there is a push to end the filibuster. Many Democrats are calling for Schumer to end that long-standing protection of minority rights in the Senate. Schumer has refused to guarantee that he will protect the filibuster tradition, even though he demanded that it be preserved during years of Republican Senate control.
In both chambers, Democrats are calling for the possible expulsion of fellow members who voted to challenge electoral votes before the Jan. 6 riot in the Capitol. I opposed that electoral-vote challenge — but it was not “sedition” or “insurrection” to vote for it. Federal law expressly allows for such challenges, and Democrats have mounted challenges in past elections. These calls demonstrate a crisis of leadership in a country that remains a political powder keg. We have seen extreme violence on both the left and the right for four years, from Portland to Washington itself. The Inauguration occurred surrounded by 25,000 national guard troops, due to the Jan. 6 riot by the extreme right, and it was followed by rioting in various cities by the extreme left. Riots have continued this week in various states.
Yet despite an election that clearly favored compromise and divided power, leaders like House Speaker Nancy Pelosi (D-Calif.) and others are fueling divisions. Reps. Steve Cohen (D-Tenn.), Mikie Sherrill (D-N.J.) and others have accused colleagues of possibly giving tours to “insurrectionists” before the riot to provide (in Sherrill’s words) “reconnaissance for the next day.” (The group Sherrill saw reportedly was a representative’s own family.) When confronted with such scurrilous accusations, Pelosi insisted that Republicans were known to have given “aid and comfort” to those seeking to destroy the country. Those words are derived from the Constitution’s provision on treason. Such reckless rhetoric and actions show that leaders in Congress are seeking to capitalize on our divisions, not to heal them.
The greater concern, though, is the total silence of Biden, who has spoken of healing the nation but done little to seek unity. He could, for instance, declare support for the filibuster, which he staunchly defended as a senator — but he hasn’t. That would take real leadership, to support a rule that makes things more difficult for you but could force real compromise and national healing. Many were eager — a tad too eager — to declare Biden president on Inauguration Day. Now he needs to show there was good reason for their hope. To show that he is not just another politician but a president who sees our divisions as a threat to our entire nation. He needs to lead.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.