The Corner

Politics & Policy

The Constitutional Shutdown

President Trump’s embarrassing capitulation today is of course first and foremost his own fault. He created the circumstances for a government shutdown, basically for momentary performative purposes while putting on a show for the cameras with Schumer and Pelosi in December, without giving any thought to whether or how he could use it to exercise leverage or create the conditions to extract something through it from his political opponents. He is a terrible negotiator, with very little sense of how our system of government works.

But anyone observing our politics over the past month with an eye to how our system of government works would also have to be struck by the total absence of anything resembling a functioning legislature.

The purpose of Congress in our system is to pursue accommodations in a divided society. That’s why the institution is formed as it is. Its purpose is not the same as that of the European parliaments—which is to enable the majority party to enact its agenda while it is in power. The purpose of the Congress, rather, is to compel negotiated settlements of political and policy differences. That is to be done by, well, negotiation: by putting forward different positions, arguing over their merits, weighing priorities, trying out different ways of giving opposing sides enough of what they care about to get their assent, and seeing which can get enough votes to be enacted. Congress made no serious effort to do anything like this at any point in the course of the shutdown.

Presidents often play a disruptive role in this process, and in some sense they’re supposed to. They exercise power outside the legislative framework, and so can advantage their allies and set back their opponents by threatening vetoes, influencing public opinion, and using the leverage of their administrative authorities. But what we saw in this process, and have seen for many years now in Congress, was a much more profound kind of deference to the second branch. Republicans basically waited around to see what the president would do, while Democrats used him as a foil, and there was essentially no negotiation between them. The Congress has become largely a stage for political performance art, rather than legislative work.

There was no reason for Congress to stand around and wait during the past month. Members who share President Trump’s priorities on immigration are generally better than he is at translating them into practical proposals, and could have tried to extract something from those who disagree in the course of the shutdown. That would have involved compromises, and maybe the president would have vetoed those—but maybe not. He would have gotten more out of such a process than he has out of the shutdown as it has played out. In any case, a veto is not a failure, it is part of the process. President Trump has never used his veto pen, and it wouldn’t be the end of the world if he did.

That it pretty much never occurred to any members of Congress to take things in hand and behave like legislators is no small part of the problem we have. It was a problem long before Trump. It looks likely to be a problem long after him. And it is, on the whole, probably a bigger problem than anything he is doing.

Yuval Levin is the director of social, cultural, and constitutional studies at the American Enterprise Institute and the editor of National Affairs.

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