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.