McConnell’s Plan: Stack the Courts and Legislate From the Bench

When Barack Obama issued executive orders, especially during his last two years in office, Republicans responded with words like “tyranny.” The 44th president clearly stated that he would employ his “pen and phone” strategy to accomplish things that congress had refused to take up, primarily because the Republican approach had been to obstruct anything he and the Democrats attempted to do.

The Republicans, of course, changed their tune when Donald Trump was elected. Since the first days of his presidency, when he issued a travel ban on Muslims, this president has governed primarily through the use of executive orders, even when his party controlled both houses of congress.

For a while now, the Trump administration has been insisting that congress change the rules for how the government responds to claims of asylum. Because those changes are part of this administration’s xenophobic approach to refugees, congress has not acted on any of them. On Monday, Trump issued yet another executive order that basically ends asylum protections.

The Trump administration on Monday moved to end asylum protections for most Central American migrants in a major escalation of the president’s battle to tamp down the number of people crossing the U.S.-Mexico border.

According to a new rule published in the Federal Register, asylum seekers who pass through another country first will be ineligible for asylum at the U.S. southern border. The rule, expected to go into effect Tuesday, also applies to children who have crossed the border alone…

But the move by President Donald Trump’s administration was meant to essentially end asylum protections as they now are on the southern border.

Just as with most of Obama’s and Trump’s executive orders, this one will be challenged in court the minute it goes into effect on Tuesday. What we are witnessing is a pattern beginning to emerge that substitutes the judiciary for the legislative branch of government.

The Supreme Court recently announced that they will take up the challenge to DACA when they reconvene in October. President Obama issued that executive order to protect Dreamers from deportation after congress failed to pass both comprehensive immigration reform and the Dream Act. Trump ended the program via an executive order and, for months, tried to use the Dreamers as hostages to pass his xenophobic asylum reforms. It is his attempt to end the program that will be heard by the Supreme Court. So ultimately, the fate of the Dreamers will be in the hands of nine justices.

Similarly, the fate of health insurance for millions of Americans will likely find its way into the hands of Supreme Court Justices once again, after the Republican-controlled congress failed to repeal Obamacare. Also winding their way through the courts are numerous executive orders issued by Trump to undo the progress the Obama administration made on curbing climate change.

Other than passing massive tax cuts for corporations and the wealthy, Majority Leader McConnell has been clear that he is not interested in passing legislation. He spent the eight years of the Obama administration obstructing everything Democrats tried to do and now embraces the title “Grim Reaper” when it comes to stopping bills that have passed the House. McConnell had to be cajoled by Jared Kushner to allow criminal justice reform to reach the Senate floor—so he’s not even interested in passing anything on Trump’s agenda.

Instead, as we’ve seen, the majority leader is focused solely on confirming conservative justices to federal courts. That’s why he referred to his decision to block Obama’s Supreme Court nominee, Merrick Garland, as his most consequential political accomplishment.

McConnell knows that the GOP is destined to become a minority party in the coming years. If they maintain their slight majority in the Senate, they have the power to obstruct anything a Democratic president tries to accomplish. Even if they lose their majority, they can still obstruct as long as the filibuster rules remain in place.

Ultimately, minorities and majorities are meaningless if McConnell can stack the federal courts with extremist judges and use them to bypass both congress and the president. That is precisely why he had that little smirk on his face when responding to the question about whether the Senate would confirm a Trump-nominated Supreme Court nominee in 2020.

Mitch McConnell is perfectly happy to completely neuter congress, stack the federal courts with extremist judges, and allow them to legislate from the bench while the GOP slips into minority status. And no, he doesn’t give a damn if you think that Republicans are hypocrites after all the years they have accused Democrats of legislating from the bench. What voters think doesn’t matter when the courts—the only unelected branch of government—hold all of the power.

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Nancy LeTourneau

Nancy LeTourneau is a contributing writer for the Washington Monthly. Follow her on Twitter @Smartypants60.