By Mike Dorf
For personal reasons, I need to take a break from blogging for at least a week or two. Professors Buchanan and Colb will continue to post on their appointed schedule, so there will be new content here on DoL, just not from me.
Before signing off, however, I wanted to make a brief comment on the procedure leading to, and likely to follow, the shutdown/debt ceiling deal that appears to be emerging from the Senate.
Supposing that the deal as it emerges from the Senate passes the House (a big "supposing") and is signed by President Obama, it will take some time to determine whether his strategy of not negotiating with a metaphorical gun to his head succeeded. As a definitional matter, I think it's debatable whether his signing the legislation--which includes some concessions to the Republicans--counts as negotiation. If I were a White House spokesperson, I would say it doesn't because the President didn't negotiate the deal; he merely agreed to sign legislation that had bipartisan support in Congress.
But I am not a White House spokesperson, and so I'm inclined to say that this is a technicality. The point of not negotiating with hostage takers is to avoid creating incentives for future hostage taking. If Republicans perceive the deal as meeting even some of their demands, then they may attempt the maneuver again . . . and again . . . and again. The fact that they will have to negotiate with Harry Reid rather than directly with the President is inconsequential. Hostage taking will have been rewarded in any event.
Is there nonetheless reason to hope that the hostage takers have learned their lesson--and will thus not attempt to use the debt ceiling and the threat of government shutdowns in future negotiations? The answer to that question is more complicated. The fact that the day of reckoning is only put off by a few months strongly suggests that Republicans do plan to use those threats as leverage in further budget negotiations. A terrorist with a bomb is still a terrorist with a bomb, even if the bomb has a relatively long fuse.
Meanwhile, there is very little chance that Tea Party Republicans will be chastened by the public reaction to their tactics. They will more likely be emboldened by their partial success or, for those who think this deal is a sellout because it doesn't repeal the Affordable Care Act and ensure the resignation of President Obama, emboldened with righteous anger.
The hope, such as it is, must therefore be that the experience of the last several weeks leads Speaker Boehner and other old Republican hands to completely abandon the Hastert Rule--and thus the Tea Party wing of the House--going forward. Will they do it? I suspect not, but I hope to be proven wrong.