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How Can the Minority Party Use the Separation of Powers to Their Advantage?

by Countable | 3.20.17

Heading into Inauguration Day this week, Democrats find themselves in a similar position to one Republicans were in eight years ago — in the minority of both chambers in Congress with an opposing president taking office who will have a chance to change the complexion of the Supreme Court.

While the ultimate remedy for Democrats to change their situation is a combination of electoral success and time, they do have some tools at their disposal in the meantime that we’ve broken down for you below:

The Filibuster

Senate rules allow one senator to hold the floor and talk about whatever they want for as long as they want until at least 60 of their colleagues vote to end the filibuster. This might be the most potent tool at Democrats’ disposal given that Republicans only control 52 seats in the Senate, but they won’t be able to use the filibuster in all situations.

For example, Democrats will have the ability to filibuster most bills that move through the Senate except for those passed using the reconciliation process, like the bill that gets the ball rolling on a repeal of Obamacare. They can also filibuster the president’s nominees to the Supreme Court, but when Democrats last controlled the Senate then-Majority Leader Harry Reid changed the rules to allow Cabinet nominations to advance with a simple majority, so they won’t be able to filibuster those.

The Power of the Purse

While Republicans may be in the majority, they’ll need Democratic support to move legislation through the Senate, and in order to avoid a filibuster GOP lawmakers may have to make concessions to get the needed bipartisan support for bills to fund and reform the government. Unless Democrats are willing to force a government shutdown, there will be issues that they have to relent on. But the threat of a filibuster will be enough to help Democrats get some of their priorities enacted, in part because of the mere threat of a shutdown.

The Constitution

If a law is enacted that Democrats find particularly objectionable or that they think may be unconstitutional, they can file a lawsuit in federal court and hope for a favorable ruling. And if it doesn’t go their way initially, they can appeal to a higher court for another chance. Given that the Supreme Court currently has eight justices, there likely won’t many precedent-setting decisions issued until it is back to its full complement of nine. But once President Donald Trump has a Supreme Court nominee confirmed, Democrats may try to keep the judicial branch busy making decisions on controversial issues.

Devolution of Power

There’s more than just the federal government — in some ways state and local governments may very well have a greater impact on your daily life than all the lawmakers and bureaucrats in D.C. States have considerable latitude in how they implement their laws, even for programs like Medicaid that are funded with federal dollars, and the Tenth Amendment of the Constitution protects the ability of states to mostly govern themselves. It’s likely that with Republican control of the federal government, states will be given even more discretion in how they administer various laws, so in states with Democratic governors and legislatures there could be more policy experimentation and laws resisting federal policies passed (which may end up in court).

Administrative Separation of Power

There are thousands of career professionals who work in the bureaucracy at all levels of government who are insulated from political change by civil service tenure laws. This means that while they’re tasked with implementing the laws of all administrations, the bureaucracies they work within won’t change drastically when political tides shift, which can have the effect of slowing the pace with which a new administration can implement their agenda.

You can use the Take Action button below to tell your reps how they should interact with the incoming administration.

— Eric Revell

(Photo Credit: Gage Skidmore.jpg) / Creative Commons)

Countable

Written by Countable

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(138)
  • Zoya
    01/17/2017
    ···

    Block nominees with conflicts of interest and past evidence of being unfit to serve (racist, sexist, xenophobic, mentally unstable). Point out Trump's unethical behavior at every turn. Block efforts to dismantle the ACA and point out that tax cuts for the wealthy are no substitute for good health care for the middle class and poor. Obstruct, obstruct, obstruct!

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  • Lisa
    01/17/2017
    ···

    Block them at every turn. Don't allow the ACA to be repealed. Don't tolerate racism, homophobia, xenophobia. Don't allow Planned Parenthood to be thrown under the bus. Push for a thorough investigation of the Russian hacking of the election. Don't allow corporate greed to run amok any longer. Stand up for the poor and working class.

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  • Jennifer
    01/17/2017
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    Use every power at your disposal to press for investigations into Russian hacking and ethics violations by Trump and his nominees. I am counting on you not to soft-pedal on important issues like these, as well as reproductive rights, gender equality, civil rights and protecting our environment. Save the affordable care act and do not allow repeal without a suitable replacement. Put country before party, however, and certainly ahead of big money donors (like the pharmaceutical industries). Fight to correct gerrymandering so that elections are truly free and fair. Though you do not have a majority you have ways to fight for us and hold this government accountable to us all. We are counting on you and will be actively engaged in the years ahead. Thank you.

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  • Arlyne
    01/17/2017
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    The Republicans were so open in their actions on blocking anything the Obama administration put forth. Stand your ground, Dems, and block anything that is NOT in the best interest of the American people. This is the time to do what's right for the country and not go on an approval spree.

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  • Tanya
    01/17/2017
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    "When they go low, we go high" Michelle Obama. That doesn't mean we stop being the nice guy, we need to fight differently though. We need to use every tool at our disposal and be more clever than the other team. Also, learn to play the long game, which can take years and probably will. The gop plays the long game and are patient, and it's evidence is this last election. We need to do the same and also make sure that we see the outcome and show it to the people, because they have a long game but it isn't a realistic outcome in the true long run. Don't give up and don't let us down, we'll be fighting with you the best that we can as citizens.

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  • Branden
    01/17/2017
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    Do not play ball with this Illegitimate Russian elected president. Filibuster filibuster filibuster for as many years as you have to. Pursue investigations into his corrupt dealings. No blind trust?! He's impeachable on day 1! The republicans obstructed Obama for 8 years out of hate, racism and partisan lies. You'll be doing it to them because it's the right thing to do. The republicans and Trump have only their pocketbooks and personal self interests in mind. It's so ridiculously obvious.

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  • Evanne
    01/17/2017
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    Filibuster and Fight!!!!

    Like (25)
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  • Colleen
    01/17/2017
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    Block them at every opportunity. The White House did NOT win the popular vote.

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  • Tasa
    01/17/2017
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    Fight with everything you can throw at them. Remember how obstructionist the Republicans were to Pres Obama!!!!

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  • greengal66
    01/17/2017
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    It's time to hoist the GOP on their own petard. They made it clear that their policy was to obstruct everything led by President Obama and the Democrats. The GOP shamefully tried to demonize one of the most decent and competent presidents we've ever had - Barack Obama. And the GOP obstruction had nothing to do with whether or not it was good for the country or their constituents - they themselves made that abundantly clear. For example the states with the highest healthcare increases are those where GOP governors did not take the Medicaid expansion. The GOP knew they were screwing their own constituents - but they only cared about trying to tank ACA by removing the essential Medicaid expansion piece. But now the Democrat's job is so much easier: we don't have to demonize their president - Trump has done that himself and will only continue. The Democrats don't have to fight the GOP, they only need to fight the GOP policies of racism, sexism, homophobia, discrimination against immigrants, intolerance of different religions, antichoice, anti-education, climate-change denial, and the continued betterment of the 1% at the expense of the 99% (repeal of ACA, not increasing the minimum wage, etc...) which are the cornerstone of everything they do. Here the Democrats need to fight for what is morally right and stand their ground - some are very good at this but we need EVERY Democrat EVERY day to fight this battle for We the People.

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  • Cynthia
    01/17/2017
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    Filibuster, block, ask really tough questions of every cabinet nominee, support an investigation of the links between Comey, the NY FBI office, Russian hacking, and Trump ties to foreign governments.

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  • Susan
    01/17/2017
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    The role of government is to protect its citizens. That means the weak, sick and old, too. Corporations are not people OR weak and I can only hope you will represent the interests of citizens. Obstruct, leak, what have you, but I want my daughter to have reproductive and economic freedom, healthcare and a relatively clean environment. Please?

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  • Susan
    01/17/2017
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    Do not under any circumstances vote for anybody that trump nominated. They sre the exact opposite of what this country needs.

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  • KansasTamale
    01/21/2017
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    Sorry to say it, but the democrats need to act like Republicans in the legislature & be as obstructive as possible.

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  • Sam
    01/17/2017
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    Block the other party. Block everything they do. Block any court nomination. Lock the repeal of the ACA. Let them taste the same taste that we tasted for the past eight years.

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  • Mindful
    01/17/2017
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    For you on our side, obstruct, obstruct, obstruct same as they did to POTUS Obama--8yrs! All others-other side, you deserve it, don't you think? Then in 2yrs. We can take over in Congress as public will determine 'they didn't do as promised either'. So, the public will again come to their senses. And so it goes.

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  • Nicole
    01/17/2017
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    Just do what the republicans did to Obama. What dismays me about the democrats is the seemingly lack of passion and fight in them, outside Warren and Sanders. Screw going high when they go low. It's long past time to fight them where they are-in the gutter! I think you owe it to us, the people who voted for you, to fight like hell for us!

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  • Coleen
    01/17/2017
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    Block anything he wants to do! Fight for us!

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  • MMarie51
    01/17/2017
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    They should have learned from the republicans, block and obstruct every piece of legislation and appointee that is not good for the american people. The republicans did this not for the people but because they did not like President Obama and said as much when he was first elected. They now feel they have the power to screw over the American people. They have showed their true colors already. They changed the rules to repeal the healthcare act by simple majority because they could not by normal process. Block everything.

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  • denali
    01/17/2017
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    How can our Congress and Senate sit back and not investigate Russian hacking?

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