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.