Jeff Bergner. Foreign Affairs. New York, Volume 96, Issue 5. September/October 2017.
Within 100 days of his inauguration as U.S. president, Donald Trump had concluded that the U.S. legislative process is “a very tough system.” He is hardly the first occupant of the Oval Office to arrive at that judgment. Every new president finds interaction with Congress more difficult than expected. But what is challenging for any president was bound to be even more so for Trump- especially given the political climate in the United States today.
Trump ascended to the highest office in the land with no previous political experience, few settled policy views, and a combative style that had created enemies in quarters not usual for political leaders. With transactional instincts honed by decades in the business world, Trump has an approach that is characterized by speed and finality-hardly the hallmarks of the U.S. Congress. Instead of one place or person for a president to work with, there are two houses and two political parties, several dozen committees, various informal voting blocs, and a range of quasi-congressional bodies such as the Congressional Budget Office. A deal struck with one group must wend its way through the rest of the legislative process. It might change significantly in the process, as in the case of current Republican health-care legislation, which took several forms in the House of Representatives, a brand new form in the Senate, and a yet-to-be-determined form if there is ever a House-Senate conference. Or it might die altogether, as in the case of the 2013 immigration-reform legislation, which passed in the Senate but died in the House.
“I’m disappointed that it doesn’t go quicker,” an exasperated Trump said of his early experience working with Capitol Hill. Still, he has proved a fast learner. He has an uncanny ability to pivot quickly, as demonstrated by his business career, his personal life, and every step of the primary and general election campaigns. He has learned to trim his sails when necessary, as he has done with each successive iteration of the health-care bill. He has accepted that Congress can typically deal with only a handful of big issues at a time, making him recalibrate his expectation of what constitutes “quick” legislative action. What was once promised immediately, and then in the first 100 days of the administration, is now promised for the end of the 115th Congress’ first session. And he has come to see that achieving just a handful of legislative victories will count as success.
But even if he continues to adjust to the rhythms of Congress, Trump will face greater challenges than many of his predecessors. The country’s current political divisions compound the normal complexities of executive legislative relations. Congress reflects and magnifies today’s political polarization, making it harder than ever to pass significant legislation. That would have been true even if the 2016 Democratic nominee, Hillary Clinton (whose campaign offered small-bore proposals and a commitment to expand the scope of the Obama administration’s executive orders), or a more mainstream Republican, such as Senator Marco Rubio of Florida, had been elected.
Moreover, although Congress is deeply divided, it has also become newly assertive. After years of relative passivity, legislators-including those in Trump’s own party-have taken on a more active role in shaping key policies. Should an executive-branch misstep cause the political parties in Congress to come together, the challenges for Trump could escalate quickly.
Moderation In All Things
In the transition from candidate to public official, some moderation is inevitable. It is always easier to promise big results than to achieve them. Trump has already tempered his positions in several areas, and Congress has played a significant, and surprising, role in this process. In Trump’s case, it is not the opposition party that has forced him to the center (as, for example, a Republican Congress did to President Bill Clinton after the 1994 midterms). It is his own party.
Congressional Democrats today are wallowing in the irrelevancy of total “resistance.” What Democrats once denounced as nearly criminal Republican obstruction during the Obama administration is now billed as essential for the preservation of the republic. For Trump and congressional Republican leaders alike, that makes attempting to negotiate with the Democrats a near-certain waste of time. Even though a handful of congressional Democrats have spoken about working with Republicans on health-care reform, their conditions for beginning negotiations include retaining every major provision of Obamacare. But the Democrats’ irrelevance also means that, with Republicans controlling both the House and the Senate, failure to advance significant legislation cannot be blamed on the opposition.
Many congressional Republicans, including the House and Senate leaderships, are uncomfortable with a number of Trump’s stated positions. They resist the sudden or radical departures from the status quo that Trump has called for: massively increasing funding for a border wall, upsetting relationships with Washington’s NATO allies, making radical reductions in the State Department’s budget, and scrapping the North American Free Trade Agreement (Senator John McCain of Arizona, with broad Republican backing, has slowed this initiative in the Senate). In the continuing budget resolution passed in May to fund the government for five months, Trump’s own budget plans, such as providing more funding for a border wall and defunding Planned Parenthood, were largely replaced by congressional preferences. House and Senate Republicans are committed to working with Trump, but they will continue to moderate his positions in many areas as they do. But it is interesting that it may be Trump who ends up moderating congressional Republicans on health-care reform.
The Trump administration’s slowness in naming political appointees has helped congressional Republicans expand their role. Typically, senior political appointees bring a settled, institutional quality to an administration’s policies and work closely with members of Congress to advance an administration’s priorities. Trump has moved more slowly than his predecessors to fill political slots (for the understandable reasons of not wanting to nominate individuals who opposed his election and not wanting his presidency to settle into business as usual). The resulting vacuum has given Congress wide latitude to shape Republican policies.
For the administration, the process will only grow more challenging from here. What Trump gets from Congress now is as good as he will get. Six months after inauguration day, a newly elected president can usually still expect something of a honeymoon with members of his own party. Trump has not enjoyed much of one, and congressional independence will grow as the 2018 midterm elections near.
Trump has a strong stake in maintaining Republican control of the House and the Senate. If the Democrats recapture the House in the 2018 midterm elections, he will face far deeper difficulties not only on legislative policy issues but also with the investigative mechanisms of the House. Democratic control would likely mean nonstop committee investigations, subpoenas, and threats of impeachment. That would cripple Trump’s ability to win any serious legislative victories.
Yet congressional Republicans have even more at stake than Trump does. Their entire political world is on the line: leadership positions, committee chairmanships, staffs, and fundraising capabilities. Accordingly, as the elections approach, they will increasingly look out for themselves. And what now looks like presidential policy deference to Congress is likely by mid-2018 to look more like “leading from behind.”
Friends Like These
The White House has focused much of its early policy effort on issuing deregulatory executive orders, which require little input from the Hill-but even there, congressional Republicans have helped; by using their authority under the Congressional Review Act, they have been able to roll regulations back quickly. President Barack Obama pushed the envelope on executive orders about as far as a president can. With the exception of his executive order on the so-called Dreamers (undocumented immigrants who came to the United States as children), most of these orders will be overturned by either Trump or the courts. The latest example is the Paris climate accord. Because Obama took the easy way out by not sending the agreement to the Senate as a treaty, Trump was able to justify the United States’ withdrawal with a simple executive order.
But on most important domestic issues, Trump will find that he needs Congress to create meaningful, enduring reform. Accordingly, congressional Republicans, not the president, will set the bounds of what is possible. They will dictate the final outcomes and, in the process, do even more than they have done so far to moderate Trump’s policies.
The efforts to repeal the Affordable Care Act give some indication of how the process will play out. Republicans in the House and the Senate, as well as Trump, are far too exposed on this issue to fail to produce any changes at all. Moreover, unless the administration massively subsidizes health insurance companies, competition in many states’ insurance exchanges will wither away. But radical changes such as total repeal-which might have been possible before Obamacare became entrenched-are no longer plausible. The most likely result-and for Republicans, the best possible result-is a limited set of changes, many of which will empower the secretary of health and human services, that will be advertised by the GOP as a wholesale reform. Trump seems not to worry excessively about the details of health-care reform and would certainly sign a bill that left many of the Affordable Care Act’s provisions in place. So long as Congress passes a replacement bill of some sort, both congressional Republicans and Trump will declare victory.
There will also be a concerted effort by congressional Republicans to pass a tax bill. The outline of the tax plan presented by the Trump administration will serve as a point of departure, but any bill that can pass both houses of Congress will look very different. Trump’s plan calls for comprehensive reform and deep cuts in tax rates, and it makes no effort to achieve revenue neutrality. A congressional bill is likely to push for a reduction in the number of personal income tax brackets and a limited net tax cut, along with corporate tax reform, which has been politically viable since the Obama administration. Tax reform has a natural advantage over other kinds of policy legislation: despite Democrats’ rhetorical opposition to any Republican tax bill, it will be difficult for Democrats in contested states or districts to vote against tax cuts. If the scope of the president’s tax-reform plan is reduced, it will not be at all surprising to see a number of Democrats in the House and the Senate join with Republicans to support the resulting bill.
Congress will also significantly diverge from Trump in crafting a fiscal year 2018 spending bill. The administration has presented a 2018 budget that proposes substantial changes, including many reductions, across the board. Some of these, such as cuts to Planned Parenthood (if not achieved in a health-care reform bill), reflect longstanding Republican objectives. But many other proposed reductions are opposed not only by Democrats but also by Republican leaders and appropriators. Mick Mulvaney, Trump’s budget director, has signaled that the administration’s proposal is an opening offer-the art of the deal at work-and that he expects changes as the process unfolds. Both Trump and the Republican congressional leadership would be well advised to agree in advance on a limited number of priorities for the bill-increased defense spending, funding for the border wall, cuts to the Environmental Protection Agency, or whatever they may be-and then declare victory if and when they achieve those goals.
In all these areas, the dynamic between the legislative and executive branches will look quite different than it did during much of the Obama presidency. For decades, Congress has largely relinquished key parts of its constitutional role. It has ceded authority on issues such as finance, immigration, and environmental protection to regulatory bodies. It has handed over the authority to go to war to the White House. During much of the Obama administration, Congress was uniquely supine. Democratic leaders cheered on the White House’s executive orders on immigration and the Clean Air Act, which created lawlike policies entirely within areas of Congress’ constitutional authority (offering a reminder of why the framers of the Constitution were wary of political parties). The relationship between Trump and Republicans on the Hill already marks a change. Congressional Republicans will work with Trump whenever they can, especially when his proposals conform to their own long-standing policy preferences. But there will be no rubber stamp.
Consider the various committees looking into the relationship between the Trump campaign and Russia. Congressional committees frequently investigate presidents: Ronald Reagan over Iran-contra, Clinton over Monica Lewinsky, Obama over Benghazi. But it is unusual for a president to be under investigation by four separate committees, led by members of his own party, in the first year of his term. Although congressional Republicans regularly say that they can “walk and chew gum at the same time,” there is no doubt that the Russia investigations have slowed legislative progress on other issues. The appointment of Robert Mueller as special counsel, which most Republicans understandably opposed at first, may give them the space to focus on policy priorities. As Republican Senator Lindsey Graham of South Carolina put it, “We can get back to the normal business of legislating.”
The Water’s Edge
Although Congress has undertaken several minor initiatives on foreign policy-an effort to stop Saudi arms sales; legislation to impose new sanctions on Russia, which the Senate passed in June; and an endorsement of NATO’s Article 5-newly recovered congressional assertiveness has largely centered on domestic issues. Trump is quickly discovering what every other post-World War II president has recognized: he has much wider latitude on foreign and defense policy than on domestic policy. He has already been encouraged by the favorable reception he received in the Middle East during his first foreign trip, in May.
The president requires no proactive congressional input to conduct foreign and defense policies, which create significant, lasting changes to the world order. This is true of initiatives such as forging a new, informal alliance among Egypt, Israel, Jordan, Saudi Arabia, and the United Arab Emirates to counter Iran’s role in the Middle East. It is true of arming Kurdish forces to attack the Islamic State (also known as ISIS). It is true of whatever deal the president might choose to strike, or not strike, with Russia over the future of Syria. It is true of efforts to secure additional defense spending by NATO allies and to shape the tenor of the transatlantic alliance. And it will be true of however the president might choose to address North Korea’s nuclear weapons program or the growing Chinese military presence in the South China Sea.
In recent years, presidents have also enjoyed an almost totally free hand in decisions to use military force abroad, despite the considerable power the Constitution invests in the legislative branch. In this regard, Congress has utterly failed to defend its constitutional prerogatives. Not since 2002, when Congress authorized the Iraq war, has it exercised its self-created responsibilities under the War Powers Act. In 2011, Congress sat idly by as the Obama administration conducted an eight-month-long bombing campaign in Libya with the ridiculous legal rationale that the attacks should not count as hostilities. And Congress has continued to sit idly by as Trump, like Obama did before him, expands the 2001 Authorization for Use of Military Force beyond all recognition as he wages military campaigns in six different countries.
There have been recent signs in Congress of attempts to amend or revoke that 2001 authorization. But none of these efforts is likely to make it to the president’s desk (at least not without the provision of a lengthy period grandfathering the 2001 authorization), and if one did, it is highly unlikely that Trump would sign it. Unlike in domesticpolicy making, there is no reason to expect deeper congressional involvement in presidential decisions to use military force in the future. As the face of war is shaped more and more by standoff weapons, drones, and cyberwarfare, it seems less and less likely that Congress will assert its role in authorizing military actions.
In Washington today, the conventional wisdom holds that Trump is unlikely to finish 2017 with a strong record of policy accomplishments. Yet should he continue to learn how to work with a newly assertive Congress, he may defy that conventional wisdom. If he emerges from the first session of the current Congress with a health-care bill, a tax bill, several new budgetary priorities, the elimination of numerous regulations, a new Supreme Court justice, a growing economy, and no new conflicts around the world, who could fairly judge this as anything but success?
But Trump would be wise to keep in mind that there is no stronger force in American politics than a unified Congress, by the design of the Constitution’s framers. In light of recent decades of congressional passivity, that may be difficult to remember. But if the administration heads down a path that majorities in both political parties oppose, Trump could confront a unified Congress, a body that possesses far more constitutional power than the presidency.
When Congress rises to its full height and decides to act, it is fitted with the most expansive powers of any institution in the U.S. government. President Richard Nixon learned that fact the hard way. Those powers are latent, but they are always available. And they are a reminder to any president, including Trump, that although executive power can be stretched and expanded, sometimes very widely, there are limits beyond which it is not wise to proceed.