The Senate filibuster may trigger a constitutional crisis

Since our founding we’ve had two constitutional crises, where constitutional fetters blocked necessary legislative changes. The first was the breakdown of government by the states under the Articles of Confederation, which the Framers in 1787 corrected by a Constitution creating a proper federal government. Even then, however, the weakness of that government resulted in a second crisis, this time over slavery and resolved only by a Civil War, the Reconstruction Amendments and an enlarged federal government.

What happened Monday, when congressional Republicans caved to Democrats over the 2017 budget, just might be the start of a third constitutional crisis.

In a Monday night conference call to conservative journalists, White House legislative affairs director Marc Short blamed the sell-out on the need for a filibuster-proof majority in the Senate, and boasted of a few miniscule conservative wins: Planned Parenthood got funded while the wall didn’t — but we saved District of Columbia charter schools. A Hillary Clinton budget, in short.

At this point, Trump supporters are starting to wonder why we had an election last November. President Trump was elected on the promise of necessary changes; if they can’t happen under our form of government, that looks like a constitutional crisis.

Conservatives can be forgiven for thinking we’ve come to the end of the road, with a government where things can’t get done. After the excesses of the first Obama Congress, the Tea Party election of 2010 gave Republicans control of the House. That’s fine, we were told, but nothing can happen till you win the White House and the Senate.

Then, after an embarrassing loss in 2012, the GOP won the Senate in 2014. Close, but no cigar, we were told: You still need the White House.

Finally, in 2016 the GOP won the House, Senate and White House. The Promised Land, we thought — until Chuck Schumer waved filibuster threats at a supine Republican Party and made himself the most powerful politician in Washington.

So what happens now? Three possibilities. The first and most likely result is fury — then apathy. Trump’s promised reforms have been blocked, and you’re going to see a lot of buyer’s remorse among his supporters if that’s the way things are going to be.

That means, very possibly, a one-term presidency for Trump, a steady decline into mediocrity, crony capitalism and interest-group politics. Government by the Schumers in Washington.

The second possibility is crown government, rule by an all-powerful President Trump, of the kind we saw when President Barack Obama was faced with a Republican Congress and discovered he had a pen and a phone. What we learned, between 2011 and 2017, was that a president who ignores Congress can legislate from the White House through executive orders and presidential memoranda.

This is the kind of one-man regime found in most other presidential governments, and it’s what the Framers most feared. It’s what the sainted George Mason called an “elective monarchy” — which he thought was worse than the real thing under George III.

That’s a real possibility, but for one thing: Neil Gorsuch. When the Supreme Court looked at executive overreach last June, it split 4-4. Had Gorsuch been on the bench, that would have been a 5-4 decision to strike down Obama’s attempt to bypass Congress over his immigration program.

That leaves the third possibility, one that Trump alluded to this week. We could use a “good shutdown,” he said, and we also need to get rid of the Senate filibuster.

Republicans are frightened of shutdowns, but shouldn’t be when they control the White House. Remember the last shutdown, which Obama used to deliver maximum pain, like the closure of the World War II Memorial? Now imagine Trump deciding what gets shut down — starting with funds for Planned Parenthood.

But we wouldn’t have to go there if the Senate abandoned the absurd and artificial 60-vote filibuster requirement. Gridlock is already built into our Constitution, and the filibuster ratchets that up to an intolerable degree.

It doesn’t give us better government. Just the opposite, it gives senators the power to extract wasteful earmarks, such as the obscene concessions individual senators extracted in return for giving Harry Reid the votes he needed to pass ObamaCare.

Ah, but the filibuster is part of the Senate’s sacred traditions, we are told. Don’t make me laugh. The Senate’s traditions? Pride, pork and pomposity.

F.H. Buckley teaches at Scalia Law School.