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Analysis: Supreme Court and Joe Manchin tighten Biden’s political straitjacket

Add in the Republican Party’s expanding assault on voting rights and a looming fight over raising government borrowing levels, and Democrats face a struggle to repay the faith of their 2020 voters. And that’s without horrendous tests from a pandemic that is again filling hospitals, targeting unvaccinated Americans — including, increasingly, kids who have been left waiting on regulators — and looking likely to dog the White House deep into midterm election year.

Each of these crises is putting Biden’s leadership under extreme examination and in several cases exposing his inability to meaningfully shift prevailing dynamics because of divides in his own party and Republicans’ obstructive power.

The President has issued stirring and even angry demands for action on voting rights and abortion rights. But a 50-50 Senate and a new conservative Supreme Court majority severely limit his options — unless he is prepared to embrace the political earthquakes of abolishing Senate filibuster obstruction rules and enlarging the nation’s top bench, which he has neither the political majorities nor personal inclination to do, to the fury of progressives.

The challenges facing Biden also highlight a more over-arching question about his governing philosophy. How can a President dedicated to restoring and using traditional Washington methods to pass a massive program do so when confronted by a Republican Party that has already shown itself ready to shred regular order to gain and regain power?

From triumph to potential disaster

The new difficulties follow a head-spinning three weeks that actually started in triumph when Biden succeeded in shepherding a bipartisan infrastructure bill and $3.5 trillion spending blueprint through the Senate. But the sequence of subsequent dramas has stretched the White House, exposed the limits of the Democrats’ thin majorities and — in the case of the chaotic withdrawal from Kabul — displayed the capacity of outside events to destabilize presidencies at any moment.

It’s one thing for the progressive wing of the party to demand sweeping presidential action to enforce their priorities immediately. But the Democratic Party is hardly an ideological monolith. Its congressional leadership, who must be conscious of the moderate lane Biden traveled to the White House, appears to have neither the internal unity or stomach to flex power ruthlessly in the manner of rule-breaking Republicans on the filibuster and the high court.

And the cumulative power of conservatism built up over years, even with Republicans currently locked out of power in Washington, is showing itself to be a formidable political force. Senate Minority Leader Mitch McConnell, a master of obstruction, deploys the filibuster with aplomb and enjoys heaping pressure on moderate Democrats, every one of whose votes the President needs. And the conservative majority on the Supreme Court, by refusing to block a near-total Texas abortion ban, drove home its power to destroy liberal dreams not just now, but for years to come.

Trauma over abortion decision

Apart perhaps from the shock victory of Donald Trump on election night in 2016, the Texas abortion law — which bars abortion after as early as six weeks into the pregnancy and contains no exceptions for rape or incest — may be the most traumatic moment for liberals in many years.

It was obvious the new Supreme Court conservative majority was gunning for Roe v. Wade. But the manner in which the justices acquiesced in the effective stripping of Constitutional rights of women in Texas in a 5-4 decision, which included no hearings or detailed arguments, was staggering. As was the fact that the Texas law, which allows anyone in the US to sue a person — doctor, family member or Uber driver, for example, who helps someone else get an abortion — appears to introduce a form of vigilante justice with grave implications for other constitutional rights. For decades, the threat to abortion was expected to come in a frontal assault on the 1973 Roe decision.

Biden launches federal effort to respond to Texas law as he faces pressure to protect abortion

Now, unless the Supreme Court reverses itself at a later date, conservative states have a formula to simply bypass the landmark legislation entirely.

Biden reacted to the Supreme Court’s decision with a strongly worded statement and instructed his administration to examine what options there are to guarantee a woman’s right to choose in Texas. The President decried “an unprecedented assault on a woman’s constitutional rights.” Vice President Kamala Harris promised the ruling was not the “last word” on Roe v. Wade.

Attorney General Merrick Garland said the Justice Department was “deeply concerned” about the Texas abortion law. Garland’s statement was especially ironic since had McConnell not twisted convention to deny him a Supreme Court seat in President Barack Obama’s last year in office, the entire outcome of the Texas abortion episode may have been reversed.

But in any case, strong statements are unlikely to change the momentum of this issue, or satisfy progressives.

House Speaker Nancy Pelosi vowed to bring up a measure guaranteeing equal access to abortion as soon as the chamber returns from recess next week. She said the Texas law is “the most extreme, dangerous abortion ban in half a century, and its purpose is to destroy Roe v. Wade.”

But there are nowhere near the 60 votes needed in the Senate to pass such a major piece of legislation that almost all Republicans would oppose. To overcome that barrier, Democrats would have to vote by a simple majority to change the filibuster. But Manchin, several other Democratic senators and even Biden himself have balked at such a step, partly due to fears about how a future unfettered Republican Senate and White House could swiftly remake America — perhaps in the image of anti-abortion, pro-gun Texas.

Another option backed by many progressives during last year’s election campaign was a scheme to simply expand the Supreme Court to counter what Democrats see as at least two illicit Republican appointments.

John Roberts has lost control of the Supreme Court

Biden, a Washington institutionalist, whose entire political project relies on forging national unity through bipartisan measures like his infrastructure bill, has shown little interest in such a step that would ignite a political firestorm. Biden did form a commission to advise him on court reform. But it was widely seen as a way of side-stepping demands by the Democratic left for court packing.

Ultimately, the Texas abortion law and the Supreme Court’s refusal to stop it reflect the hangover from what seems to become a more disastrous election for Democrats in 2016 with every year that passes. Hillary Clinton’s defeat paved the way for Trump to seat three new justices — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — and the Texas abortion law is just the start.

Every vote counts

The Democrats’ underperformance in another election, the 2020 congressional contests, are behind their other big political problem this week. Only two runoff victories in Georgia allowed Democrats to take control of the Senate in a disappointing showing since Biden did far better in unseating Trump. The resulting 50-50 majority in the Senate means that every single vote is needed to pass anything by a simple majority. Biden cannot lose even one Democrat.

So Manchin’s new warning that he is not just uncomfortable with the size of the $3.5 trillion dollar spending package but also the concept and the idea of passing it at the current moment threatened real trouble for Biden’s domestic legacy.

“Instead of rushing to spend trillions on new government programs and additional stimulus funding, Congress should hit a strategic pause on the budget-reconciliation legislation,” Manchin wrote in the Wall Street Journal.

“A pause is warranted because it will provide more clarity on the trajectory of the pandemic, and it will allow us to determine whether inflation is transitory or not.”

Biden’s legislative skills mean it’s far too early to assume he will not be able to talk Manchin around. There have been other moments when the legislation’s prospects have seemed dark. And most bills have near death moments before they pass.

But the complex choreography needed for this particular measure leaves it especially vulnerable. And it’s also fair to ask how low Senate Budget Committee Chairman Bernie Sanders and House progressives are willing to go on the size of the final package and on its timing.

Not very far, if key House progressive Rep. Alexandria Ocasio-Cortez is to be believed.

“Maybe we hit the ‘cancel’ button on this so-called ‘bipartisan’ charade of an Exxon lobbyist drafted infrastructure bill unless we actually pass a law that helps people’s lives with healthcare expansion, childcare, climate action, etc,” Ocasio-Cortez wrote on Twitter.

Manchin’s doubts do not just endanger a single Democratic priority. The spending blueprint is a monster that pretty much includes all of Biden’s top priorities in a measure that can evade the filibuster and pass with a limited device known as reconciliation.

But if Democrats can’t get Manchin on board it is doomed. And this is also about more than one bill. The spending bill is part of a delicate dance designed to convince progressives like Ocasio-Cortez to back the bipartisan infrastructure measure that she mentioned. That proposed law would be a landmark of the Biden presidency but falls far short of the hopes of more liberal members.

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