By Charles C. W. Cooke
Friday, November 15, 2024
One of the arguments I am seeing thrown at anyone who,
like me, does not think that, say, Matt Gaetz or Robert F. Kennedy Jr. should
be given jobs in the Cabinet — and who certainly does not think that
they should be given jobs in the cabinet absent a vote in the Senate — is that, having won the
election convincingly, President Trump now has a “mandate” that ought to be
reflexively deferred to by the other branches of government. I dislike this
argument, and I’ll explain why.
It can be easy to forget this amid all the noise, but the
members of the other branches of government also won their elections,
and, within our arrangement of government, those victories have precisely the
same implications today as they did before November 5. Back in 2016, when Obama
was trying to put Merrick Garland on the Supreme Court, I was told incessantly
that, if the Republicans wanted to choose who served in the judiciary, they
should have “won the election.” But they did “win the election.” It was just a different
series of elections than the one that Barack Obama had won decisively in 2012.
Having won control of the executive branch, Obama did, indeed, enjoy the power
to nominate whomever he liked to the Supreme Court. And, having won control of
the Senate — over a number of different years — the Republicans had the power to agree or disagree with his choice. That
arrangement was not new; it was how our system has worked since 1789. The same
principle had applied to the debates over DACA in 2012 and the budget in 2013 (when the
House was the “obstructionist,” even “terroristic,” villain), to the fracas over Syria in 2013 and 2014 (when Barack Obama wished to use military force, and
both parties said no), and to Joe Biden’s unilateral attempt in 2022 to transfer student-loan debt from the
people who took it out to the U.S. Treasury. Then, as now, our federal
government boasts different branches, staffed by different people, each
exercising different powers. As such, there’s not a “mandate”
in effective at any given point, there are several.
This system is not magically repealed when, as happens
sometimes, the president happens to be of the same party as the majority in the
Senate. If it were, there would be no point in having a Senate in the first place. Naturally,
it is often the case within unified government that the judgment of the
president and the judgment of the Senate will be one and the same. But not
always. The Democrats had a trifecta when Joe Biden arrived in office, but this
did not stop the Senate from blocking some of his nominees (e.g. Neera Tanden,
David Chipman, Sarah Bloom Raskin) or guarantee that Congress would do
everything he wanted without pushback or obviation. My memory is not perfect, I
will grant, but I remain pretty sure that, when Joe Manchin said that he would not be acquiescing to the gargantuan “Build Back Better”
plan that Joe Biden was pushing, he was not accused by many conservatives of
undermining Biden’s sacred “mandate.” Neither did I hear squeals of anguish
when Joe Manchin and Kyrsten Sinema refused to go along with Biden’s attempt to
rewrite the nation’s election laws from Washington, D.C.,
or with the White House’s plan to “codify Roe v. Wade.”
Instead, they were fêted for their independence. And so they should have been!
In America, we do not have a parliamentary system, like the one in Britain, nor an elected dictator who may do whatever he wishes until he is
voted out. When a Democrat is president, this seems more obvious.
Which is to say that, insofar as a “mandate” exists, it
is an analytical rather than a legal descriptor. It is fair, of course, for
commentators to observe that FDR was elected with more enthusiasm than Jimmy
Carter or that Ronald Reagan was voted in more emphatically than was George W.
Bush; the problem arrives when one starts drawing practical conclusions
from these facts. The core beauty of the U.S. Constitution is that its terms
remain identically applicable until such time as they are changed.
Constitutionally, it is is wholly irrelevant whether a president squeaked in
under the wire or won in a historic landslide; within our system of government,
presidents enjoy the same amount of power irrespective of how convincingly they
were installed. Whatever the year, and whatever the issue, their authority is
set in stone — as are the limitations that are placed on them, the role they
play within the overall structure, and the maximum duration of their stays. In
the United States, we do not have a sliding scale of jurisdiction that is
contingent on transient popularity; the rules are the rules. If they wish to,
the members of the House and the Senate may take into account the political
atmosphere in which they are operating, but they are not obliged to, and, if
they decide to follow their own course, they ought not to be told by a choir of
nattering Jacobins that they are guilty of treachery for the crime of doing
their jobs.
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