Why the G.O.P. doesn’t need to try to pass mostly unpopular policies through the elected branches.
Not so long ago, Republicans had one of the most ambitious legislative agendas of any political party in modern American history.
Devised by the former House speaker, Paul Ryan, the so-called Ryan budget sought to reduce much of the nation’s social safety net to ashes. Congressional Republicans planned to slash Medicaid spending and food stamps. In the most aggressive version of Mr. Ryan’s proposal, Republicans would have replaced Medicare with “premium support” vouchers that could be used to buy private insurance, and then reduced the value of this subsidy every year — effectively eliminating traditional Medicare over time.
But all of that has changed. The Ryan budget is a relic. At their 2020 national convention, Republicans didn’t even bother to come up with a new platform.
Yet while the party appears to have no legislative agenda, it’s a mistake to conclude that it has no policy agenda. Because Republicans do: They have an extraordinarily ambitious agenda to roll back voting rights, to strip the government of much of its power to regulate, to give broad legal immunity to religious conservatives and to immunize many businesses from a wide range of laws.
It’s just that the Republican Party doesn’t plan to pass its agenda through either one of the elected branches. Its agenda lives in the judiciary — and especially in the Supreme Court.
From 2011, when Republicans gained control of the House of Representatives and denied President Barack Obama a governing majority, until the pandemic forced legislators’ hands in 2020, Congress enacted hardly any major legislation outside of the 2017 tax law.
In the same period, the Supreme Court
- dismantled much of America’s campaign finance law;
- severely weakened the Voting Rights Act;
- permitted states to opt out of the Affordable Care Act’s Medicaid expansion;
- expanded new “religious liberty” rights permitting some businesses that object to a law on religious grounds to diminish the rights of third parties;
- weakened laws shielding workers from sexual and racial harassment;
- expanded the right of employers to shunt workers with legal grievances into a privatized arbitration system;
- undercut public sector unions’ ability to raise funds; and
- halted Mr. Obama’s Clean Power Plan.
Now, a 6-to-3 conservative-majority Supreme Court is likely to reshape the country in the coming decade, exempting favored groups from their legal obligations, stripping the Biden administration of much of its lawful authority, and even placing a thumb on the scales of democracy itself.
Many of these changes would build on decisions handed down long before President Donald Trump reshaped the Supreme Court. The court, for example, first allowed employers to force workers to sign away their right to sue the company — locking those workers into a private-arbitration system that favors corporate parties — in a 2001 case, Circuit City v. Adams. But the court’s current majority is likely to make it much harder for workers and consumers to overcome these tactics. In Epic Systems v. Lewis (2018), Justice Neil Gorsuch wrote the court’s majority opinion favoring an employer that forced its employees to give up their right to sue.
Similarly, in the 2014 case Burwell v. Hobby Lobby, the Supreme Court held that businesses seeking a religious exemption from a law may have it — holding, for the first time, that such exemptions may be allowed even when they diminish the rights of others. That case permitted employers with religious objections to birth control to deny contraceptive coverage to their employees, even though a federal regulation required employer-provided health plans to cover contraception.
Before Justice Amy Coney Barrett joined the Supreme Court, however, a majority of the justices were very reluctant to grant religious exemptions to state regulations seeking to limit the spread of Covid-19. Yet after she became a justice, the court’s new majority started granting such exemptions to churches that wanted to defy public health orders.
It’s plausible that the Republican Party did not campaign on its old legislative agenda in 2020 because it was busy rebranding itself. Under Mr. Trump, Republicans attracted more working-class voters, while Democrats made gains in relatively affluent suburbs. So Mr. Ryan’s plans to ransack programs like Medicaid aren’t likely to inspire the party’s emerging base.
And yet the court’s conservative majority is still pushing an agenda that benefits corporations and the wealthy at the expense of workers and consumers.
It’s easy to see why government-by-judiciary appeals to Republican politicians. There’s no constituency for forced arbitration outside of corporate boardrooms. But when the court hands down decisions like Circuit City or Epic Systems, those decisions often go unnoticed. Employers score a major policy victory over their workers, and voters don’t blame the Republican politicians who placed conservative justices on the court.
Judges can also hide many of their most consequential decisions behind legal language and doctrines. One of the most important legal developments in the last few years, for example, is that a majority of the court called for strict new limits on federal agencies’ power to regulate the workplace, shield consumers and protect the environment.
In Little Sisters v. Pennsylvania (2020), the court signaled that it’s likely to strike down the Department of Health and Human Services’s rules requiring insurers to cover many forms of medical care — including birth control, immunizations and preventive care for children. And in West Virginia v. E.P.A. (2016), the court shut down much of the E.P.A.’s efforts to fight climate change.
Yet to understand decisions like Little Sisters and West Virginia, a reader needs to master arcane concepts like the “nondelegation doctrine” or “Chevron deference” that baffle even many lawyers. The result is that the Republican Party’s traditional constituency — business conservatives — walk away with big wins, while voters have less access to health care and breathe dirtier air.
By legislating from the bench, Republicans dodge accountability for unpopular policies. Meanwhile, the real power is held by Republican judges who serve for life — and therefore do not need to worry about whether their decisions enjoy public support.
It’s a terrible recipe for democracy. Voters shouldn’t need to hire a lawyer to understand what their government is doing.
The ‘American Way of Life’ Is Shaping Up to Be a Battleground
There are limits to what ordinary people are willing to endure to secure their employers’ bottom line.
Chris Christie, a Trump supporter and a former New Jersey governor, pleaded with Americans on May 5 to risk disease and death by returning to work. “Everybody wants to save every life they can,” he said, but “we’ve got to let some of these folks get back to work.” Otherwise “we’re going to destroy the American way of life in these families.”
The “American way of life” is shaping up to be a battleground.
On one side is the working class. From Amazon warehouse workers to striking sanitation workers in New Orleans, there are limits to what ordinary people are willing to endure to secure their employers’ bottom line. Resistance to oppression and exploitation is a familiar experience for millions of workers in this country. And when workers have not found justice or relief in mainstream politics, they have turned to more combative ways of mobilizing to secure it.
On the other side is the Republican Party, led by the Trump administration, which has accelerated its call for states to “reopen” the economy by sending people back to work. While President Trump admits that some people will “be affected badly,” nonetheless “we have to get our country open.”
Public health experts disagree. Instead, they argue that testing rates must “double or triple” and that we need a more intense regime of “contact tracing” and isolation. This has been the established pattern in countries that managed the coronavirus with success. But without these measures, forecast models predict a sharp rise in fatalities. A conservative model that in mid-April predicted a ghastly death toll of 60,000 by August now estimates 147,000 fatalities by August. Just as the rate of infection drops in cities like New York and Detroit, new outbreaks threaten to emerge elsewhere where restrictions are being relaxed.
But if we expect tens of millions of people to stay at home for even longer, that is possible only if people have access to income, food, stable housing and reliable health care. If people cannot work, then these things will have to be provided by the federal government. It is that simple.
For Republicans, the “American way of life” as one with big government social welfare programs would be worse than the pandemic. At the core of their vision of the United States is a celebration of supposed rugged individualism and self-sufficiency where hard work is valorized and creates success. Of course, the contrapositive is also believed to be true, that when people have not been successful it is because they did not work hard enough.
Buried within this is the false notion that the U.S. is free from the hierarchies of class. Instead, Republicans and most mainstream Democrats would argue, America has fluid social mobility where a person’s fortitude determines the heights of his or her success. This powerful narrative has motivated millions to migrate to this country. But for tens of millions, this view of ‘the American way of life’ has no bearing on their lives.
Typically, the contradictions of our society are buried beneath the American flag, suffocating hubris and triumphalist claims of exceptionalism. But the pandemic has pushed all of the country’s problems to the center of American life. It has also highlighted how our political class, disproportionately wealthy and white, dithers for weeks, only to produce underwhelming “rescue” bills that, at best, do no more than barely maintain the status quo.
The median wealth of a U.S. senator was $3.2 million as of 2018, and $900,000 for a member of the House of Representatives. These elected officials voted for one-time stimulus checks of $1,200 as if that was enough to sustain workers, whose median income is $61,973 and who are now nearly two months into various mandates to shelter-in-place and not work outside their homes. As a result, a tale of two pandemics has emerged.
The crisis spotlights the vicious class divide cleaving through our society and the ways it is also permeated with racism and xenophobia. African-Americans endure disproportionate exposure to the disease, and an alarming number of videos show black people being brutalized by the police for not wearing masks or social distancing, while middle-class white people doing the same things are left in peace. In New York City, 92 percent of those arrested for violating rules regarding social distancing and 82 percent of those receiving summons for the same offense have been black or Latino.
Our society imagines itself to be impervious to the rigidities of class, but it is overwhelmed with suffering, deprivation and hunger. Food banks across the country report extraordinary demand, producing an almost shocking rebuke of the image of a country of universal abundance. According to one report, a food bank along the affluent New Jersey shore has set up a text service allowing people to discreetly pick up their food.
Elsewhere, the signs of a crisis that looks like the Great Depression are impossible to hide. In Anaheim, Calif., home to Disneyland, cars formed half-mile-long lines in two different directions, waiting to pick up free food. In San Antonio, 10,000 cars waited for hours to receive food from a food bank. Even still, Republicans balk at expanding access to food stamps while hunger is on the rise. Nearly one in five children 12 and younger don’t have enough to eat.
That “way of life” may also begin to look like mass homelessness. Through the first five days of April, 31 percent of tenants nationwide had failed to pay their rent. And while more people paid in May, continued payments seem unsustainable as millions fall into unemployment. Forty-three million households rent in the U.S., but there is no public rental assistance for residents who lose the ability to afford their rent. With only a few weeks left on many eviction moratoriums, there is a thin line between a place to shelter in and homelessness for tens of millions of Americans.
Many elected officials in the Republican Party have access to Covid-19 testing, quality health care and the ultimate cushion of wealth to protect them. Yet they suggest others take the “risk” of returning to work as an act of patriotism necessary to regenerate the economy. This is duplicitous and obscures the manipulation of U.S. workers.
While the recent stimulus bills doled out trillions of dollars to corporate America and the “financial sector,” the smallest allocations have provided cash, food, rent or health care for citizens. The gaps in the thin membrane of a safety net for ordinary Americans have made it impossible to do anything other than return to work.
This isn’t just malfeasance or incompetence. Part of the “American way of life” for at least some of these elected officials is keeping workers just poor enough to ensure that the “essential” work force stays shows up each day. In place of decent wages, hazard pay, robust distribution of personal protective equipment and the simplest guarantees of health and safety, these lawmakers use the threat of starvation and homelessness to keep the work force intact.
In the case of the meatpacking industry, there is not even a veil of choice, as those jobs are inexplicably labeled essential, as if life cannot go on without meat consumption. The largely immigrant and black meatpacking work force has been treated barely better than the carcasses they process. They are completely expendable. Thousands have tested positive, but the plants chug along, while employers offer the bare minimum by way of safety protections, according to workers. If there were any question about the conditions endured in meatpacking plants, consider that 145 meat inspectors have been diagnosed with Covid-19 and three have died.
The statements of the two senators from South Carolina, Lindsey Graham and Tim Scott, vociferously opposing the extension of $600 supplemental payments to unemployment insurance, offer another stark example of how workers are being compelled to return to unsafe work environments. Mr. Scott referred to the supplement as a “perverse incentive” to not work. He and Mr. Graham argued that the payments were more than some workers’ salaries, which is an indictment of the jobs and the companies, not the employees.
This is not the first time Southern politicians have complained that government aid to poor or working-class people would undermine their perverse reliance on low-wage labor. During the Great Depression, Southern leaders opposed new systems of social welfare over fear it would undermine “the civilization to which we are accustomed,” as a newspaper in Charleston, S.C., described it. The crude version came from an official in Alabama who insisted that welfare payments to African-Americans should be lower because, “Negroes just don’t want to work.” The logic was that if you could pay black men a nickel then white men would celebrate being paid a dime. Meanwhile, the prevailing wages elsewhere were significantly higher than both. This is why wages are still lower across the South than elsewhere in the country.
American progress means that Mr. Scott, an African-American senator from South Carolina, now voices these ideas. But then as now, complaints about social welfare are central to disciplining the labor force. Discipline in the U.S. has always included low and inconsistent unemployment and welfare combined with stark deprivation. Each has resulted in a hyper-productive work force with few benefits in comparison to America’s peer countries.
This is at the heart of the conflict over reopening the country or allowing people to continue to shelter-in-place to suppress the virus. But if the social distancing and closures were ever going to be successful, it would have meant providing all workers with the means to live in comfort at home while they waited out the disease. Instead, they have been offered the choice of hunger and homelessness or death and disease at work.
The governor of Iowa, Kim Reynolds, made this painfully clear when she announced that not only was Iowa reopening, but that furloughed workers in private or public employment who refused to work out of fear of being infected would lose current unemployment benefits. She described these workers’ choices as a “voluntary quit.”
The Ohio Department of Jobs and Family Services is also instructing employers to report workers who refuse to go to work because of the pandemic. Part of what’s going on is the crush of people filing for benefits means state funds are shrinking. This is exacerbated by the reluctance of the Trump administration to bail out state governments. That the U.S. government would funnel trillions to corporate America but balk at sending money to state governments also appears to be part of “the American way of life” that resembles the financial sector bailout in 2008.
This cannot all be laid at the feet of the Trump administration, though it has undeniably made life worse for millions. These are also the bitter fruits of decades of public policies that have denigrated the need for a social safety net while gambling on growth to keep the heads of U.S. workers above water just enough to ward off any real complaints or protests.
The attacks on welfare, food stamps, public housing and all of the attendant programs that could mitigate the worst aspects of this disaster continue to be bipartisan. The loud praise of Gov. Andrew Cuomo of New York, in contrast to the poor performance of President Trump, has overshadowed protests against his $400 million cuts to hospitals in New York as the virus was raging through the city.
There will be many more examples of Democrats wielding the ax in response to unprecedented budget shortages in the coming months. With the increasing scale of the crisis — as unemployment grows to an otherworldly 36.5 million people while states run out of money and contemplate cutting Medicaid and other already meager kinds of social welfare — the vast need for government assistance will test the political class’s aversion to such intervention.
During the long and uneven recovery from the Great Recession, the warped distribution of wealth led to protests and labor organizing. The crisis unfolding today is already deeper and much more catastrophic to a wider swath of workers than anything since the 1930s. The status quo is untenable.