It is rightly pointed out that the legislative branch is constitutionally separate from the executive and therefore the Congress could pass a spending measure that would open the government without Trump’s acquiescence, and further, it is wholly possible that there are enough votes to override a veto (if said vote could be held in secret).
Don’t expect such an outcome.
Let’s consider the basic American civics lesson that leads to the initial assertion (the legislature can act without the executive) and the political science which then tells us why that won’t happen.
We are taught, correctly, that the US Constitution establishes a system of separated powers with three branches of government: the legislative, the executive, and the judicial. The first makes the laws, the second puts them into practice, and the third interprets their application. We are often told that these branches are “co-equal” which is true in an abstract sense, but in terms of actual power that is not the case. Indeed, at least on paper, the legislature is the most powerful and the courts the weakest.* Separation of powers flows from the theories of Montesquieu (among others) as applied by the Framers of the US Constitution and was truly made manifest when the Philadelphia conventioneers decided to eschew the idea that the legislature would select the executive.** In addition to this, we have a systems of checks and balances wherein each branch has some ability to encroach on the powers of the others. For this conversation the veto and the veto override are the most salient examples. For those interested, Federalist 51 gives one of the best theoretical accounts of how this was supposed to work, and why it was implemented.***
As I have noted before, and no doubt will continue noting, the Framers of the US Constitution did not understand, nor anticipate, political parties as a central actor in representative democracy. Parties ended up affecting legislative behavior in ways not fully understood when the system was designed (and are a major reason why the Electoral College never worked the way they thought it would).
Parties are central to understanding why it is highly unlikely that the Senate will help to open the government unless Trump is on board in some fashion.
The existence of parties changes the basic logic of separation of powers in ways that are not usually taught in basic civics/American government courses. We get told a tale of separated powers with institutional prerogatives but ignore the fact that parties are also institutions which can bridge the separations between executive and legislative.
So yes the legislature is a separate power from the executive but the Republican Party is an also an institution, and it connects the Senate and the President currently (and separates the House from the Senate within what is technically one branch).
So, while McConnell might be rightly seen as the keeper of one institution, the Senate, which is separated from another institution, the presidency, he is also the leader of the Republican Party and so is the President. As a result, and especially since the House is controlled by the Democrats, McConnell’s allegiance is more to party than to institution. We all understand this to be true, but we often do not see how this dynamic affects the separation of powers story that we are taught from our youth.
All of this is reinforced by electoral incentives–the Republicans in the Senate know that their votes support the head of the party, i.e., Trump, and to go against Trump is to risk losing reelection. Again, these factors are far more important than protecting the institutional powers of the Senate/Congress.
So, when McConnell is criticized for putting party first, the answer is: yes, he is (and the incentives of the system that have evolved to dictate this behavior). I am not, by the way, addressing here any normative judgement, but rather just stating empirical facts.
Put another way: the only time textbook type separation of powers behavior takes place (where the ambition of the Congress truly buts heads with the ambition of the presidency) in when we have fully divided government. But note that the separation there is really about party, not institutional roles.
For a much deeper discussion of this, I would again recommend Presidents, Parties, and Prime Ministers: How the Separation of Powers Affects Party Organization and Behavior by David J. Samuels and Matthew S. Shugart. In that book the authors note that in separation of powers systems, parties tend to be “presidentialized.” This means “parties delegate considerable discretion to their leader-as-executives to shape their electoral and governing strategies, and that parties lose their ability to hold their agents to accounts” (37).
Sounds familiar, yes?
The Republican Party is headed by Trump. Congressional Republicans still believe (correctly, I think) that their electoral health is dependent on Trump, ergo they will stick with Trump. Further, they have no mechanism to get rid of him as party leader (that are plausible) until 2020.
And so I do not expect McConnell to go against the leader of his party, even though McConnell very likely could end the shutdown. Whatever comes will require some kind of agreement with Trump.
*But that is another conversation entirely.
**Most of the various debated plans had the legislature picking the president. One the president was no longer dependent on the legislature, we created presidentialism. It is worth noting, however, that the Electoral College was designed in a way that assumed the House would frequently choose the president. This ended up not being the case.
***Written by a guy, Madison, who originally designed a system (the Virginia Plan) that would have had the president selected by Congress.
