The party in control of the presidency typically loses seats in the House and Senate in midterm elections. Since Jimmy Carter, the presidential party has on average lost just over 20 seats in the House and just under four seats in the Senate. An average election (which they never are) would see the Republicans hold onto the House by a narrow margin, and would see the Democrats take control of the Senate. But with 23 Senate Democrats up for reelection in 2018, plus two independents who caucus with the Democrats, and only eight Republicans, it looks to be a tough slog for Democrats to replicate historical averages, and pick up the Senate.
Jon Huntsman and Joseph Lieberman have written an interesting piece arguing against rule by narrow majorities. They believe rule by the 51 percent leads to polarization, instability, and oppression of minorities. I generally agree, and Mike Rappaport and I have devoted a substantial portion of our careers arguing that supermajority rule requiring consensus for government action, particularly at the federal level, is often better than narrow majority rule.
But even worse than enactment of coercive regulation by a bare majority is that by a minority. And the modern American administrative state encourages minority rule. The basic reason is that the President is likely to represent more the median voter of his party rather than the median voter of the nation. His nomination was secured by satisfying these voters. To be sure, his election and reelection depends on assembling a broader coalition but citizens appear to vote at the national election more on the state of the economy and a few very high visibility policies than a President’s overall administrative record.
As a result, an administration’s regulatory agenda will often represent the preferences of only a minority of the nation. Sadly, administrative law gives the President and his appointees substantial discretion to follow such preferences. Broad delegations allow for the choice of a wide range of policy points, including those on the more extreme ends of the spectrum.
In his state of the union and again in his recent interview with Politico, President Obama expressed sorrow that he has not been able to end political animosities. As he put it in the interview, “a singular regret for me is the fact that our body politic has become more polarized, the language, the spirit has become meaner than when I came in.”
Obama blames different factors from the media to gerrymandering for our angry divisions. But Obama himself is in no small measure responsible for polarization. His reliance on executive action, most egregiously his order on immigration, is a primary cause. Unsupported by any express delegation from Congress, this extraordinary act is enormously controversial. It seeks to permit five million people who have come to this country illegally not only to stay but to work.
Legislation on divisive issues is much less likely to lead to polarization than executive fiat.