By Dan McLaughlin
Friday, February 24, 2017
There have been a lot of complaints — many from liberals,
but some from sincerely alarmed conservatives — that Republicans are not doing
enough so far to stand up to President Trump. The need for a Republican check
on Trump is real, but many of the complaints misunderstand what checks and
balances are, what is normal to expect this early in a presidency, and what has
actually happened in the first month of Trump’s term.
Balancing the
Checks
Four points are worth remembering at the outset.
First, a brand-new administration is different from one
that has been fully staffed. Trump has been president for only a month; he’s
still in the “honeymoon” period when new presidents traditionally enjoy
elevated support, especially from those in their own party. While many people
who voted for Republicans for the Senate and House did not vote for Trump, and
while exit polls showed that around 10 percent of voters (most of them
Republicans) backed Trump despite viewing him unfavorably, most of the constituents of most
elected Republicans voted for Trump and want to see him succeed in the White
House. Even conservatives who opposed Trump root and branch during the campaign
do not want American government to be completely dysfunctional for the next
four years. Nobody who lives in the real world should expect congressional
Republicans, even those who greatly dislike Trump, to treat him from Day One
like a second-term lame duck.
Second, remember an enduring truth of political combat:
You pick your battles or your battles pick you. If you try to fight everything,
you will wear yourself out and give your adversary the initiative to
concentrate forces to fight you on the turf that favors him most. Congressional
Republicans couldn’t and didn’t fight Obama on everything. Even when they
openly opposed and refused to cooperate with an Obama initiative, they didn’t
use every possible point of leverage to torpedo it. (E.g., they never used the
power of the purse to defund Obamacare.) It’s not practical for Republicans to
fight a president who (at least nominally) agrees with them on many issues and
is supported by their voting base with more vigor on more fronts than they
fought a president with whom they and their voters disagreed on nearly everything.
Third, checks and balances are not always public and
visible. Every elected official, even Trump, operates under constraints, and
responds to messages delivered privately or implicitly. Things that never
happen are just as important as things that are attempted and thwarted. And
personnel is policy: A leader surrounded by conservative people will be more
likely to do conservative things, a leader surrounded by competent people will
be more likely to do competent things, and a leader surrounded by normal people
will be more likely to do normal things.
Finally, our system of checks and balances varies by the
issue. Presidents have a range of powers, some of which Congress has very
little ability to stymie, and some of which don’t work at all without Congress’s
active cooperation.
Checking For
Balance
Where, then, can we expect Republicans — on Capitol Hill,
within the administration, in state capitols, and outside of government — to
rein in President Trump?
Twitter: A lot
of the outrage over Trump’s conduct in office comes from his tweets and from
other statements made by Trump and his press spokespeople. And not without
reason: On a daily basis, this White House says things that can’t be defended
with a straight face, and its campaign against the very concept of objective
truth should be alarming.
Yet, there’s hardly any aspect of the Trump presidency
over which other Republicans have less influence than Trump’s Twitter feed,
which even his closest aides have tried and failed to restrain. Nor is there
really that much Congress could do about Trump’s press conferences, or
spokespeople such as Sean Spicer and Kellyanne Conway. Twitter is a private
platform, and even the public communications of Trump and his press staff are
far beyond congressional control. Republicans who attempt to denounce — or,
worse, justify — everything Trump says will never have time to do their own
jobs.
The calculating response is to start by denouncing those
things that are in one’s political interest to denounce. The right response is also to weigh in now
and then on a few things that really demand pushback, political expedience be
damned. That is more or less the approach people such as Paul Ryan, John
McCain, Marco Rubio, and Lindsey Graham took during the campaign. Others, such
as Mitch McConnell, have chosen to simply wash their hands of Trump’s
statements. But lacking any means to actually stop Trump from running off his
mouth, Republicans would be smart to focus their attentions on actual exercises
of government power.
The Cabinet:
One area where Senate Republicans have a veto on Trump, if they choose to use
it, is his executive-branch nominees. But their goals for the president’s
cabinet are sharply divergent from those of their Democratic colleagues, and so
has been their response.
Seven Democrats, including Kirsten Gillibrand, Bernie
Sanders, Elizabeth Warren, and Cory Booker, have voted against almost all of
Trump’s nominees so far. All but five members of the Democratic caucus have
voted to oppose at least half of
Trump’s nominees. This is an unprecedented level of blanket rejection of a new
president’s ability to staff the Executive Branch, dramatically different from
the opposite-party response to Barack Obama or George W. Bush at the start of
their tenures. Nine members of Obama’s Cabinet were confirmed unanimously, and
only three were opposed by even half of the Republican caucus: Tim Geithner
(confirmed 60-34), Kathleen Sebelius (confirmed 65-31), and Eric Holder (confirmed
75-21). Hillary Clinton was confirmed 94-2, Janet Napolitano by unanimous voice
vote.
The volume of “no” votes (even against highly qualified
subject-matter experts such as General James Mattis and Congressman Tom Price)
suggests a depth of opposition unrelated to the qualifications of any
individual nominee. Gillibrand, for example, seems to believe we should simply
go four years without a secretary of state, a secretary of defense, a secretary
of the treasury, or an attorney general. No president since Andrew Johnson has
faced such congressional resistance to his executive-branch staffing
preferences. If that’s your standard for “checks and balances,” Republicans in
Congress are obviously not going to satisfy you.
Republicans can and should vote down bad nominees, though
— not only those they see as conventionally unqualified or disqualified, but
also those whose backgrounds or beliefs place them beyond the pale of the
party’s values. But for the most part, that’s not who Trump has nominated. If
you wanted to deter Trump from picking nominees who are outside the Republican
mainstream, you’d be hard pressed to complain about his choices. People such as
Mattis, Price, Nikki Haley, Rick Perry, Elaine Chao, Mick Mulvaney, and Mike
Pompeo would have fit comfortably in any Republican administration. Jeff
Sessions is closer to a “Trump-style” nominee, at least on immigration, but is
professionally well qualified and has long been a member in good standing of
the Senate GOP caucus. Betsy DeVos is a long-time conservative activist, a
donor to lots of normal Republicans, and the wife of a former Republican
candidate for governor of Michigan. Trump’s unconventional nominees have mostly
not been alt-right rabble-rousers but business-community figures such as Rex Tillerson
and Steve Mnuchin. Again, personnel is policy: The more Cabinet Departments
that are in the day-to-day control of sober, responsible people, the more we
can expect Trump’s more eccentric and dangerous impulses to be blunted.
Faced with a mostly conventional slate of cabinet
nominees, Senate Republicans have acted the way you’d expect. Two balked at
DeVos because they disagree with her; a few others had reservations about
Tillerson’s posture towards Russia but gave him the benefit of the doubt; more
bailed (some publicly, some behind the scenes) on Andy Puzder, who was
withdrawn. (Notably, the replacements for Puzder and for General Michael Flynn
have both been more conventional figures.) But most have voted to confirm
nominees they would have supported under any administration.
The White House
Staff: If you want to see why Senate confirmation matters, look at where
Trump stuck more problematic nominees such as Flynn and Steve Bannon: on the
White House staff, in positions not requiring the Senate’s advice or consent.
Flynn’s swift downfall seems to have been driven, as much as anything, by his
crossing of the most powerful conventional Republican in Washington, Vice
President Pence. Given Bannon’s malignant influence (especially on the National
Security Council, for which he is totally unqualified), there are plenty of
good arguments for Reince Priebus, Paul Ryan, Senate Republicans, and possibly
Pence to pressure Trump to get rid of him — but the wisest bet for anyone who
wants such a push to succeed is to wait as Bannon makes himself a political
liability, rather than attempting to make him one. If Priebus, for example,
were to lose a power struggle with Bannon now, it would likely cost him his
job, isolate Pence, and elevate Bannon. So instead, he appears alongside Bannon
at CPAC and plays nice in public. Bannon must nevertheless know that almost
nobody in the Republican party will stand up for him if he gets in hot water or
loses Trump’s confidence.
The Courts:
There’s no greater exercise of presidential power — with the possible exception
of sending the nation to war — than appointing the judges of the federal
judiciary, the most powerful and least accountable branch of the federal
government. While the Senate owes some
deference to the president’s judicial nominees, as opposed to his cabinet
picks, there’s no presumption that Trump is entitled to stock the judiciary
with loyalists. In the past half century, Harriet Miers is the only Supreme
Court nominee to be rejected primarily due to opposition within the president’s
own party, and Miers’s nomination failed because she was seen as a personal
crony of the president unqualified for the job, rather than a qualified,
committed exponent of the party’s principles.
Whether or not he was swayed by the behind-the-scenes
influence of Senate Republicans, Trump went the conventional route with his
first SCOTUS pick. Rather than choosing a hack or a loyalist, he chose Neil
Gorsuch, a brilliant, principled, originalist from a movement-conservative
background who is notably skeptical of executive overreach. Gorsuch’s
nomination would have cheered Republicans even if it had come from a Ted
Cruz-type Republican president. So Republicans have no need to check Trump thus
far on the courts; he has acted as if the check was already there.
Legislation and
the Budget: Writing laws and dictating federal taxation and spending are
jobs for Congress. Trump can do neither without its help, and it can and should
reclaim its control over these traditional legislative functions. The good news
is that that’s exactly what has happened so far. If anything, Congressional
Republicans could use more help and support from the White House than they are
getting. On health care, Trump has so far deferred even more to Congress than
Obama did in 2009-10, when he wound up with a plan that differed significantly
from the one he ran on. On taxes, in sharp contrast to George W. Bush, Trump
has similarly let Ryan do the heavy lifting, only issuing the occasional
statement about how he’d like to see tax policy shake out. Trump’s signature
spending proposal, a massive WPA-style infrastructure bill that Bannon once
touted as carrying a $1 trillion price tag, has reportedly been pushed into
2018 so that Congress can pursue Ryan’s health-care and tax priorities first.
The president will still have a say in the final shape of the 2017-18
legislative and budget agenda, but Congress is so far the dominant influence on
major legislative and budget priorities. None of this, it should be pointed
out, has happened as a result of open Republican opposition to Trump.
Executive Orders
and Foreign Policy: Conventional Republicans may diverge more sharply from
Trump when it comes to those powers more firmly within the constitutional
purview of the executive branch, from executive orders to regulations to
foreign policy.
Of course, when Trump issues orders that invade the
lawmaking powers of Congress, Congress should put up a fight, just as it
repeatedly did in the face of Obama’s executive overreach. But aside from Trump’s
refugee order, which was at least arguably within powers given him by Congress,
there has been little in his executive actions to raise any real concerns of
overreach. Most of his executive orders have instead been directed at repealing
Obama’s orders, restoring ones made by prior Republican presidents, and
restraining federal power.
Trump’s foreign policy has attracted a few early critics,
notably the “neocon” triumvirate of McCain, Rubio, and Graham and the more
anti-interventionist faction of Rand Paul and Justin Amash. All of these men
would likely have asserted their independence from the foreign policy of a
President Kasich or Cruz, too. And McCain in particular has chosen a path of
constructive engagement, rather than simply backseat driving; he’s been
traveling to NATO allies to deliver a message of continuity, and working to bring
Tillerson along with him.
As for the refugee order itself, it was enjoined so
quickly by the federal courts that there was not much reason for elected
Republicans to fight it — and cooler heads have once again prevailed, with the
administration now working at a more gradual pace to produce a more carefully
drafted replacement order.
Investigations and
Impeachment: Trump has so far prompted an unprecedented number of demands
for congressional-Republican oversight investigations. Since World War II, there
have been precious few investigations of a sitting administration during times
of one-party government. There were virtually no investigations of the Obama
administration by the Democratic Congress in 2009-10, or of the Clinton
administration by the Democratic Congress in 1993-94. Though in the latter case
the existence of an independent counsel investigating Whitewater gave Democrats
an excuse for inaction, the first Travelgate and Filegate investigations
weren’t launched until after Republicans won back Congress in the 1994
midterms. Democrats are therefore asking Republicans to meet a higher standard
than they themselves have met.
Of course, Republicans should hold themselves to a higher standard. And however
reluctantly, they are: The Senate Intelligence Committee continues to move
toward an unprecedented investigation of Flynn’s departure and the Russian
efforts to influence the 2016 election, with a number of Republican senators
calling for a thorough investigation and testimony from Flynn.
Re-Election:
Finally, Republicans will have to decide whether to support Trump for
re-election in 2020. The bar for a primary challenge to a sitting president is
a high one, but major figures in both parties have crossed that line when they
felt it was justified, most notably Ronald Reagan in 1976 and Ted Kennedy and
Jerry Brown in 1980. But 2020 is still a long ways away. For now, Trump’s
Republican skeptics can and should take a wait-and-see approach to his
reelection.
The System Still
Works
Left-wing calls for unprecedented bipartisan “Resistance”
to Trump return again and again to the notion that any Republicans who
collaborate with Trump are tantamount to right-wing Germans who tried to work
with Hitler (thinking they could control him) and ended up enabling his
transition from democratically elected leader to dictator. But for all of
Trump’s authoritarian instincts, he’s not Hitler. Hitler in 1933 was 44, a
political fanatic and hardened combat veteran of World War I with a decade’s
experience leading a violent street movement full of his fellow veterans. Trump
is 70, a political dilettante who’s addicted to cable TV, has spent most of his
life making real-estate deals, and commands a political base disproportionately
composed of people in their 60s and 70s. Moreover, America is not Weimar
Germany, which was then a 15-year-old democracy crumbling amidst
hyperinflation, a global Depression, and the loss of a war that killed 13
percent of its military-age men. We have a long history of absorbing and
co-opting fringe movements into our remarkably durable two-party system, and
that’s exactly what the rest of Republican leadership is trying to do with
Trump. The struggle is far from over, but the early returns suggest that he is
not as impervious to their efforts as he appeared.
Republicans have good reasons for opposing some of what
Trump has done so far, and will no doubt have more reasons to oppose him in the
future. But the idea that they are not influencing his decisions simply because
they aren’t burning papier-mâché puppets in the streets is detached from the
realities of American government.
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