Trump's trifecta: Congress, states help

Gordon L. Weil

Trifectas are not only for racetracks. 

At the track, you win a trifecta bet by picking the first three finishers in order.  The pay-off is usually big.

In politics, trifectas also exist.  That’s when one party controls the executive and both branches of the legislature.  President-elect Trump will have one.  That could give him a big payoff in presidential powers.

The scope of Trump’s victory cannot be measured solely by his big margin in the electoral vote or his narrow margin in the popular vote.  The voters did not split their tickets and gave him a Republican Congress free from any Democratic check on him. What made Trump’s win so large was his undisputed win and having a potentially compliant Congress.

A trifecta-plus occurs when a majority of the highest court sides with a trifecta party in power.  Given the conservative, sometimes openly partisan, majority on the Supreme Court, Trump could enjoy that kind of government.  Its decision on allowing considerable presidential immunity gives him broad discretion to skip applying the law or to rule by executive orders.

Political trifectas often exist at the state level.  Next year, 23 states will have Republican trifectas, 15 will be Democratic and 12 states will have divided governments.  In terms of population, 42 percent of the people live in Democratic states and 41 percent in GOP states.  Maine is a trifecta state, and the Democrats frequently dominate, as they will again in 2025.

While there will be some defectors, most Republican trifecta states can be expected to follow Trump’s lead, adding to his power. When he seeks their involvement in enforcing his immigration policies, they are likely to provide help in finding and expelling illegal immigrants.  These states could multiply the effect of his federal actions on other issues as well.

During Trump’s first term, Democratic states managed to avoid action on some federal government demands.  That administration had moved too quickly to put Trump’s platform into effect.  Its hasty work was sufficiently sloppy that Democratic state administrations could find and exploit loopholes.

The new Trump term promises to be somewhat more professional and based on more than loyalty alone.  His appointees should pursue his goals, but may be able to develop their own methods.  If he micromanages or impatiently demands immediate action, he may not avoid the same kind of errors he previously made.

One federal law may somewhat slow Trump’s progress.  The Administrative Procedure Act may sound dry, but it can be an effective way of slowing sweeping change.  Government agencies may add or drop a rule only if they can justify their plans and allow for public comment.  The APA process takes time.

The president, no matter his mandate, must follow the law.  Some states will inevitably challenge Trump’s moves in federal court.  Washington State often brought actions during the first Trump term, winning 55 separate cases.  Such proceedings can serve to slow changes. 

Ultimately, the conflict between the Trump administration and Democratic states is likely to boil down to a dispute about one of the key parts of the Constitution.  It’s called the Supremacy Clause.

While the original states believed they were delegating only some of their sovereign powers to the federal government, that clause has given Washington great powers over the states.  It says that laws enacted under the Constitution are “the supreme law of the land.”  Such laws may simply overrule state laws.

In practice, the federal government has moved into areas that the Framers may not have thought would be taken from the states.  That opens the question of whether a state is blocked from all independent action on a matter or if it shares authority with Washington. 

Can a state accept the federal rule, but go beyond it by being even more strict?  The question is whether the supremacy clause can preempt any state power or allows states to exercise sovereignty alongside the federal government.  Cases are likely to be decided one issue at a time.

If all of this sounds like the making of a legal mess, it is.  It surely could slow federal action, though the Supreme Court has been quickly issuing procedural orders that could be favorable to Trump, even while its final decisions may take many more months. 

In the end, conflicts between Trump and the Democratic trifecta states may be settled by the Supreme Court.  The Court decides what the Constitution means. It seems likely that, given the current Court’s pro-Trump leaning, its decisions in supremacy clause disputes would result in judgments favorable to the president.

The Supreme Court could allow Trump to force Democratic states to follow his agencies’ orders. American politics could be arriving at government under a federal-state, trifecta-plus regime.    With that kind of wall-to-wall control, Trump would hold the winning trifecta ticket. 

Congress should hold Trump accountable

 

Gordon L. Weil

“The Man Who Would Be King.”

That’s the title of a short story (made into a movie) by Rudyard Kipling, a famous British writer.  The tale is about a man who works his way to absolute regal control.

The question today is whether that title would apply to President-elect Donald Trump.  Maybe what Kipling made happen in a distant land can’t happen here.

“In England,” Alexander Hamilton wrote in arguing for the Constitution, “the king is unaccountable….”   American presidents should have comparable powers to kings.  But, unlike the royals, they could be held both politically and legally responsible. 

Presidents are subject to elections plus check and balances from other parts of the government.  They may also face “legal punishment,” Hamilton said.  In short, presidents should be king-lite, only kept from full power by being held accountable.

The Constitution allows a president to be both convicted by the Senate and subject to prosecution for the same actions.  This July, the Supreme Court sharply limited presidential exposure to prosecution and retained final control to decide what matters could go to court.  That watered down Hamilton’s promise.

Proven immune to impeachment and conviction and given a free pass by the Supreme Court, Trump wants a clear path, unimpeded by the Constitution and laws, to unchecked action.  To him, the election means winner-take-all. The Democrats struggled to explain what they meant about a “threat to democracy,” but that would be it.

Take the current case. The Senate is supposed to give its “advice and consent” to key presidential appointments. It has sometimes rejected presidential choices.   To reach a decision, it investigates the nominees, holds public hearings, and then votes.  This is part of checks and balances.

If the Senate recesses for more than 10 days, the president may make a “recess appointment.”  The appointee may serve without Senate review until the end of the current Congress, as long as two years.  In practice, the Senate now avoids lengthy absences, so recess appointments have disappeared.

Trump wants the new Senate to take a recess shortly after it begins work in January, too early to justify a break.   He could then install in office for two years people who might turn out otherwise to be unacceptable to the Senate.

Some senators, with Maine Republican Susan Collins among the leaders, say they will insist on the normal confirmation process, perhaps sped up.  The big government split may be institutional not political, between Congress and the president rather than between Republicans and Democrats.

Congress comes ahead of the president in the Constitution to emphasize its role as the lead institution of the federal government.  The world has become more complex, so the president must deal with complicated and fast-moving matters.  However, national policy is supposed to be decided by the people’s representatives.  It’s still the constitutional role of Congress.

If it insists on applying checks and balances, Congress might improve its tattered reputation. Trump could try to totally discredit it or accept some limits, knowing he can count on strong GOP support for most of his policies.

The Connecticut government commissioned a study on what makes governors strong or weak.  It could help in evaluating Trump’s presidential power. 

For his formal powers, he would be rated strong, because he was independently elected, picks his own administration, has veto power and enjoys legislative backing.  But he does not control the budget, and his appointments must be confirmed.

For his personal power, Trump’s overall weak popularity does not undermine his political appeal.  He enjoyed a clear election mandate, which must be seen as a positive report card on his first term.  And he pulled off an historic comeback.  These are attributes of a strong president.

On balance, Trump could end up with that rating.  His reputation as a successful president may depend on how well he can work out an institutional deal with Congress.  He stands to gain more power by cooperating with a GOP Congress than by stirring up unnecessary turf wars.  By asserting itself, Congress could restore some of its lost powers and recover its reputation.

In foreign affairs, presidents have great scope, so Trump may also become a strong leader by adopting popular policies and avoiding unnecessary domestic disputes. Closing the border may well be broadly popular, but not mass deportation.  He could unilaterally end military conflicts by forcing concessions on some countries, but avoid high tariffs that would bring high prices. 

Kipling’s king makes unwise and egotistical use of his power, bringing his downfall.  The people realize they have been misled, rebel and dump their king.  That’s the usual fate of absolute rulers.

Even as he dreams of a third term, Trump must understand that his presidential legacy – strong, weak or wise – is being made now.

Election reforms don't work

 

Gordon L. Weil

Jared Golden has a good point.  The Democrat represents Maine’s Second District, which has always backed Trump, and has previously won elections thanks to Ranked-Choice Voting. But he found this year that it may not make sense.

RCV and the proposed National Popular Vote that would displace the Electoral College, are reforms that can reduce democratic government set out in the Constitution.

The great British Prime Minister Winston Churchill once recalled that “democracy is the worst form of government except for all the other forms.”  Democracy is messy and inefficient to ensure that decisions will be carefully made to reflect a thoughtful popular will.  RCV and NPV may be more efficient, but they could undermine popular democracy.

American elections have traditionally been conducted by plurality voting – electing the person with the most votes, even if not an absolute majority.  The Maine Constitution requires it for state elective offices, but uses RCV for federal and party elections. 

In some states and municipalities, when the winner does not top 50 percent, a run-off must be held among the leading finishers.  That makes sense and allows two real votes, often between candidates of two parties.  The second election gives voters a new choice after a brief campaign and taking into account the latest political developments.

The traditional system has worked reasonably well.  RCV eliminates both the plurality and the run-off.  Voters may get to pre-select a back-up if their favorite does not make a strong enough showing to win outright.  That’s a bit like saying you’ll get the side dish for dinner if they run out of your entree, but you won’t have the chance to select again from the main menu.

Maine has a rule that the first choice can be left blank with a voter either picking a second choice or leaving the entire RCV choice empty.  Either way that RCV ballot counts, even if it denies the victory to the majority winner, Golden in this case, because the vacant ballots must be counted as if they were a candidate choice.  That’s absurd.

Another alternative to tradition is the “jungle primary.” All party candidates and independents run in a single election. Then the top finishers go to a real run-off. 

California uses the system with a “top-two” result. This year, a Democrat influenced the first- round vote so that it would yield him a second-round race against a Republican rather than against another popular Democrat.  In effect, he turned the “jungle primary” back into a traditional run-off.  That was not the intent.

As for the NPV, it supposedly would yield a single national vote for president.  Democrats favor it, given two recent elections in which a Republican won the electoral vote while losing the popular vote across the country.  The U.S. has never held a nationwide vote.

The NPV has been approved only in states under Democratic control.  The goal is to allow the popular majority, which the Democrats have believed is theirs, to override the electoral vote that enhances the influence of small, rural states.  Their majorities in California and New York would create a national popular majority that could swamp GOP wins in many small states.

Obviously, the Democrats worried that, for a second time, Donald Trump would win the electoral vote but lose the popular vote, again making the case for NPV.  By winning a popular majority, President-elect Trump has undermined the NPV case.

Linked to the NPV is the call for ending the Constitution’s electoral voting system under which each state automatically receives a minimum of three electoral votes.  That gives an individual voter in a small state more voting power than one in a large state.

Aside from the historic fact that, in creating the United States the 13 states demanded this system, it has usually produced a so-called “qualified majority,” in which the popular vote is supplemented by a state vote.  It has worked that way in 55 of the 60 American presidential elections.   This system is used in the EU and Switzerland, among other jurisdictions. 

The electoral vote will not be eliminated, because amending the Constitution has become impossible.  There is no possibility that the constitutionally required 38 states will be able to agree on any change.  Reopening the Constitution is now avoided because of concern that the amendment process could allow for basic rights, long observed, to be modified or abolished.

Alaska, which narrowly adopted RCV, may turn out to have narrowly repealed it this year.  Several states have banned it.   NPV is either futile or unnecessary.  The Electoral College is here to stay.

These unlikely or impossible reforms arise out of the failure of political compromise.  They offer false hope.  Possibly, the only way the national government works these days is when one party dominates it.  That is what has just happened.

 

Signals from the 2024 elections

 

Gordon L. Weil

The pollsters have gone into hiding to lick their well-deserved wounds.

The pundits are desperately assigning blame for the Democratic defeat, while admitting that Trump was a better candidate than they thought.

Beyond the false forecasts and short-time wisdom, a variety of signals emerge from the elections. 

First, my “told you so” statement.  Last December, I wrote that the election would not be between Biden and Trump.  I then wrote that the election would not be close. And I wrote repeatedly that polling results were false, conjured up by pollsters, and not a good measure of opinion.  All true.

Now, down to business.  Here are signals from the elections.

Whatever you think about his message, Trump came across as telling you what he really thought.  He declared that he would say what he wanted, no matter the advice of his strategists.  He generated an aura of sincerity that is almost extinct among political candidates.  In my experience, the early Ed Muskie was like that, and that could be one reason he succeeded.

Money in politics matters, but not without limit.  People will take just so much repetitive advertising or endless pleas for contributions.  To no avail, the Harris campaign amassed more than Trump, despite his big backers.  There is a point of saturation, which comes when people have heard enough.  Billionaire backers and huge war chests can overkill. 

One reason why polling falters is that the relatively few people who agree to talk often lie.  Pollsters reported that in 2016, people fibbed about their support, because they did not want to admit they backed Trump.  That may have been true this year as well and explain why his victory was unforeseen.

Members of politically identified groups, everyone from Poles in Pennsylvania to Muslims in Michigan, may not necessarily see themselves as members of narrow constituencies, but more like average Americans.  If bread is too expensive for middle-class Americans, it is also expensive for target populations.  Apparently, a lot of people agreed on that.

Campaigns often focus on Latinos, who are assumed to see discrimination against Latin American immigrants as their overriding issue. The same may be true for other ethnic groups. Assuming that minorities would back Democrats, simply because they are minorities, may miss the innate conservatism of many such people.  Too much political slicing and dicing, perhaps.

The parties may be fading.  Lawn signs omit party affiliation, formerly a sign of loyal support.  Elections may be more about persons than parties.  Once, the national party chairs were the prime “slash and burn” campaign representatives, allowing the candidate to remain more elevated.  They are almost unknown these days.  Trump’s daughter-in-law co-chairs the GOP.

Trump will be strongest in 2025.  Presidents usually enjoy the greatest deference in their first year, so next year could be the best time for him to try to push his policies, especially while enjoying strong congressional support.  

The following year is another election year, the mid-term when an incumbent president usually loses some congressional support.  Re-election campaigns may reflect the influence and effects of Trump’s policies.  The Democrats could see a chance to retake one or both houses as the best way to control some of his moves.  Expect to see presidential-level campaign spending.

JD Vance may be more in focus than the usual vice president.  As he ages, Trump might find Vance’s visibility helpful, especially in 2026.  And he may bear closer than usual scrutiny, as the possibility of his having to step into the Oval Office increases.

Trump may test the extent of the extreme political powers that the Supreme Court has given him.  Will he be the “day-one dictator” or will he perceive political risks in going too far?  While the Democrats may push back, the real question will be whether Congress reasserts itself.  Congressional renewal, desperately needed, could be a bi-partisan concern.

The role of Congress will depend heavily on the Republican leaders.  House Speaker Mike Johnson has clearly aligned himself with Trump. The Senate GOP will soon select a new Majority Leader who could influence the president or simply fall in line.  This impending selection may provide some hints about the Trump-Congress relationship.

Leadership is the big challenge for the Democrats, which have no obvious national chief.  A new image is needed, possibly to lead the 2026 campaign effort.  The Democratic National Committee may have to stage an informal version of the presidential primary the party never had. It could gain from having a spokesperson who acts as leader of the opposition from outside of Congress.

This list suggests the election has left much American voters do not know about their political future.  It is likely to differ from recent political tradition.   Trump is defining the GOP message.  The Democrats need a new message of their own.

 

 

Trump win confirms America’s political change

 

Gordon L. Weil

American political history has reached a turning point.

So, too, has the country’s moral sense, at least about politics.

But that did not happen this week.  It happened eight years ago, when Donald Trump was first elected president.  Any doubt was erased by his victory and the powerful vote for Republicans across the country this week.  Except for the coasts, that win was national.

Just as in 1933, when President Franklin D. Roosevelt and his New Deal changed the country, so have Trump and his intent to “Make America Great Again.”  For FDR, the emphasis was on a “new” start while for Trump the emphasis has been on greatness “again.” 

Before FDR, the nation had been essentially conservative.  The private economy dominated and the role of government and individual rights were limited.  The economic crisis of the Great Depression and World War II forced change. The New Deal era and American post-war world dominance transformed people’s thinking.

By 2016, Trump had absorbed and embodied the increasing public sense that the country had gone too far beyond its conservative origins.  Whether he exploited that sentiment or truly believed it did not matter.  He came to be the flag around which the people yearning for the political norms of the past could rally.

That realization was more than the supporters of the politics and institutions of the New Deal era could readily accept.  Government was the main tool by which Americans took care of one another, and it was difficult for them to believe that cutting its cost would assume a higher priority than increasing or even maintaining its services.

The political aberration may not have been the 2016 election, but the 2020 election when the old guard barely clung to office.  Looking back, it becomes less difficult to understand how bitter it was for Trump and his backers to accept Joe Biden and company who stood as obstacles on their path to changing the country.

This year, Democrats believed they could snuff out Trump’s movement, because of their appeal to growing segments of the electorate and on the abortion issue.  The rushed selection of their candidate, made necessary by a president who ignored his own failings, left them running on the hope that the people would inevitably recognize Trump as a mistake.

They ignored the scope of the belief that the government had gone too far, too fast.   Social change, focused mostly on the sexual identity of some people, was not yet acceptable to many.  The lack of control of the border, seen by some as the government’s intent, created national uneasiness.   Democratic progressives, buoyed by a few election upsets, overreached.

American politics have fundamentally changed, and Trump has been able to take advantage of it.  Originally, Congress was supposed to be the dominant power of the federal government, not the president who had replaced the British king.  Parties were not expected to matter as much as the balanced institutions with their built-in checks.

In 1992, Newt Gingrich, the House Republican leader, set out to change the system.  GOP members of Congress would commit to acting like a bloc and would loyally back the leader of their party.  In effect, the U.S. would adopt the parliamentary system.  It has worked and congressional Republicans, whatever they may think of Trump, are totally loyal to him.

This year, the power of the president was further boosted by the decision of the Supreme Court that the chief executive could exercise almost unchecked power.  The appointed Court, confirmed by the president’s party, became a prime driver of presidential dominance.

Underlying the changes that are taking place is a reversal of what had come to be accepted political morality.  It has been a version of the Golden Rule: “Do unto others as you would have them do unto you.”

In practice, that meant there were certain unwritten understandings about political behavior.  The Constitution could not describe every possible form of government conduct, but the early leaders believed that certain customs would be observed.  They could not suspect that acceptable behavior would change as much as it has.

Trump was clearly behind the assault on the Capitol.  He radically denies undeniable facts.  He savagely attacks those who oppose him and shows no respect for many people who have earned respect, even if they disagree.  The way he denigrated John McCain, an American hero of unlimited courage, went beyond civilized bounds.

If not dead, the constitutional culture is seriously wounded.  Unwritten understandings are readily repealed. The Trump goal is nothing less than the transformation of government.

Voters may be ready to believe that Trump does not mean what he says when he lashes out or that he cannot carry out his threats, but they may find his claim is true: he will be a president unlike any other. 

Election could surprise pundits, transform politics

 

Gordon L. Weil

This election is different.

The polls say it will be decided by a handful of votes, but they could be flat wrong.  The most responsible pollsters admit that they could be wrong, and that they may be following each other in a herd.  Survey forecasts have become nothing more than conventional wisdom right now.

Candidates and campaigns on both sides have been showing signs of desperation and panic.  While that may be caused by pollsters’ forecasts, it could well reveal their own confusion.  And fear runs deep.

The main difference in the election is obvious and could be critical.  It pits a former president trying to make a comeback against the current vice president, a non-white woman. 

More than most past elections, this one is dominated by fear. The cause of confusion and fear is the daily data fix of the polls.  Polling has become an art, not a science.  Successfully completed interviews yield a poor sample of the voters and are subject to arbitrary and questionable adjustments made by competing pollsters. 

For many reasons, the polls may not forecast the election.

Polls themselves.  Their unrelenting predictions of a close race could create their own reality, influence voters, and have direct but unmeasurable effects. 

Lies.  People lie to polls.  Campaigns and their allies, including foreign governments, lie to voters.  The social media, hiding behind America’s cherished free speech, have become a political cesspool.  The effect of extreme charges offered as the truth is unmeasurable. 

Loyalty.  Donald Trump has extraordinarily loyal followers, allowing them to justify or ignore his extreme conduct, which goes beyond traditional bounds.  Their number and their turnout to vote are incalculable, but Trump counts on it heavily.

Traditional Republicans.  In 2016, Trump won with the support of people seeking change and loyal GOP voters.  This year, the opposition of traditional Republicans, led by former Rep. Liz Cheney, raises the possibility of significant defections. They may not answer polls, but they could turn out to be the real swing vote.

Women. The abortion issue has given Harris the answer to Trump’s loyal voters.  Women are motivated.  Their enthusiasm may help get out the vote, and it is possible that the existing majority of women voters over men will grow.

Men.  Some men do not want a woman as president.  They may have doubts Harris’ ability to negotiate with foreign autocrats, as Trump argues.  Also, the fact that the U.S. lags behind Britain, Germany, Italy, India and Australia and other countries in having chosen a woman leader may reveal something about the American electorate.

Youth.  Many of the new voter registrations reflect first-time, young voters.  The polls may not have been able to account for them. It is possible that many of them will respond to Taylor Swift and vote for Harris.

Economy.  The economy is healthy with recession and inflation fears quieted, but people ignore the big picture and still worry about their own pay and prices.   The economy should help Harris, but its individual effects boost Trump.  It’s the biggest single issue, but only for about a quarter of voters, so it may be overrated.

Biden.  Vice presidents don’t make policy, but they do gain valuable governing experience.  Harris may get credit for her role backing up Biden, but Trump has succeeded in linking her with the president, who remains unpopular because he was late to act on immigration and is held responsible for inflation.  Harris has had a tough time asserting her independence.

Age.  Biden was pushed out by his age, and Trump, obviously declining, would be the oldest president.  Whether his fading and the possibility of JD Vance as president matters to voters is unknown.  

Race.  The “browning of America” is inevitable, but strongly disliked by some people.  The immigration issue could well be about race.  Obama’s presidency may have raised racial sensitivity rather than easing it, and many objections to Harris may be about her being Black.  This may not be a question that people answer pollsters honestly.

Character.  The polls treat character as just another issue. But character may matter more than all issues for some voters.  Trump’s statements and threats make him highly controversial, and he has been the focus of this campaign.

Turnout.  The Democrats seek a big turnout, yielding solid majorities to end Trumpism.  The GOP worries and works hard to suppress the Democratic vote by raising false doubts about ballot security.  The surge in early voting could help the Democrats. 

Harris needs a convincing victory if she is to avoid prolonged battles over the election’s outcome and gain some political room to govern.   Trump would relish even a slim win that gets him to the White House.

Next Tuesday will show just how accurate the polls are and how different this election really is.