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.
