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Vox Populi, Vox Impetu

The first constitutional test of the new era will be answered less by Donald Trump than by Mitch McConnell (R-Ky.) and Paul Ryan (R-Wis.): namely, whether the congressional leadership delivers to the chief magistrate the news that Capitol Hill is not a subsidiary of the White House. At his non-lovefest with the press the other day, President-elect Trump said that the New York Times “pretty accurately reported” what his plans were on health care. The Times said that Trump insisted on an immediate repeal of Obamacare (which was already planned) but that he wanted it paired with replacement “very quickly or simultaneously,” which is delusional. According to the Times, substantial delay between the two would be “unacceptable to the incoming president.”

Trump similarly used an interview with the Washington Post to put Republicans on notice that, in the Post’s words, “if the party splinters or slows his agenda, he is ready to use the power of the presidency—and Twitter—to usher his legislation to passage. ‘The Congress can’t get cold feet because the people will not let that happen,’ Trump said.”

To his credit, House Speaker Paul Ryan has said that “This will be a thoughtful, step-by-step process. . . . We’re not going to swap one 2,700-page monstrosity for another. . . . We’re going to do this the right way.” But will he insist upon it?

It is far from clear that the triumphal rush to repeal on the basis of an as-yet-to-be-determined replacement is prudent, either. Delay is going to produce uncertainties in the insurance market. Some of these could be addressed by executive action. But, and partly for that reason, the constitutional problems latent in the President-elect’s demand for immediacy are troubling.

A President has the authority to find legislation that Congress actually passes unacceptable. That is called the veto power. Presidents have no warrant, on the other hand, to find it unacceptable when Congress fails to pass legislation on a schedule of their choosing. If Congress passes a repeal without a replacement that Trump accepts, he can veto it.

It is true he has just won an election, but it was not to exaltation as a homegrown proconsul with plenary authority. All 435 members of the House and a third of Senators also just won elections. The popular margin for the House exceeded the popular minority—accompanied by a comfortable but hardly earth-shattering Electoral College majority—that Trump seems increasingly determined to interpret in world-historical terms.

With those members rests the prime policymaking function of the government. James Madison wrote of the authority Trump is about to assume: “The natural province of the executive magistrate is to execute laws, as that of the legislature is to make laws. All his acts therefore, properly executive, must presuppose the existence of the laws to be executed.”

Granted that Madison’s understanding of the executive never wholly prevailed. We have traveled a considerable distance, moreover, from those parts that did. Still, when Presidents “demand” this or that of Congress, it should be by making a persuasive case for the urgency of action. That is the proper way to pressure an independent branch of government, not jeremiads about what is and is not “acceptable” to the President. What is acceptable to Presidents does not matter until Congress decides to pass a law.

Indeed, an explicit purpose of the constitutional design is to ensure that it does not do so in a headlong rush. That purpose, in other words, is to ensure deliberation.

This is latent in Federalist 10, which assumes that one of the ways an extensive republic would be able to overcome the evils of factionalism was by making communication difficult. But as of 1787, communication was not impossible across large territories, it was merely slow. The connecting assumption is that the passions that fuel factious behavior naturally dissipate with time.

Federalist 63, similarly, says a purpose of the Senate is to counter the passions that might inflame Americans through the “interference of some temperate and respectable body of citizens [able] to suspend the blow mediated by the people against themselves, until reason, justice, and truth, can regain their authority over the public mind.” Again, delay until the passions diffuse.

The President is supposed to assist here, not stoke the underlying passions. Publius intends the executive to serve as a brake, not an accelerant, on the Congress:

When occasions present themselves, in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have appointed, to be the guardians of those interests; to withstand the temporary delusion, in order to give them time and opportunity for more cool and sedate reflection.

That the President-elect is calling for immediate passage of a plan that does not exist, or at least has not been disclosed, should set off multiple alarms. The time the Constitution introduces into the policymaking process helps to assure that lawmaking schemes—especially those of immense complexity, as the replacement measure is certain to be—are thoroughly considered. Conservatism ought to insist on that. Such consideration is how unintended consequences are discovered. Conservatism might even consider the possibility of step-by-step reforms.

This would take some measure of resistance to public passions, perhaps including the ones behind the push for immediate repeal—especially to the extent an immediate repeal means tacitly endorsing (even temporarily and exigently) policymaking through executive action. It would certainly take resistance to demands from an executive-in-waiting who needs to learn that the art of the deal in a system of shared and separated powers is not the same as it is in the comparative authoritarianism of the corporate world.

And it would require resisting the cumulative force of the two—the voters’ clamors and those made by their self-proclaimed “voice,” in a moment when both seem to be convinced that the only vote that mattered, the only time it mattered, was when they marked the top of the ballot on the first Tuesday after the first Monday in November 2016.

These are questions the Senate Majority Leader and Speaker of the House will have to answer. It is vital that they not accept the idea that they and their colleagues are all players on a parliamentary team led by the President-elect. It is futile to look to him for a proper, and probably even for a thoroughly considered, understanding of the President’s role in the constitutional system.

But say this for Trump: At least he is showing an ambition for power. McConnell and Ryan will have to flex some territorial muscle, and do so early, if their ambition is to be made to counteract his.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on January 17, 2017 at 11:16:49 am

McConnel and Ryan may squeak and squawk but they'll get rolled by Trump in the end just like Obama rolled them over and over for six years.

And I'll laugh every time you write another pearl clutching blog post through your tears that Trump keeps winning and nobody can stop him. Trump has crushed both political parties and the media. The next real battle is the deep state and the entrenched bureaucracy. My money is on Trump.

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Image of boxty
boxty
on January 17, 2017 at 13:42:23 pm

VOX POPULI

So, we begin.

Perhaps what we are observing from the incoming Executive is not so much a conviction of a mandated power to legislate as it is to speak and act as and for that Vox Populi - the Electorate.

Of Course, no ONE person can be that voice. In fact, neither can any 545 persons (Together with all their entourage).

Unlike the readers here, the wide body of the electorate is neither knowledgeable of, nor concerned with, the nuances of Federal Constitutionalism and its history (or soundness); nor constrained by:

"when Presidents “demand” this or that of Congress, it should be by making a persuasive case for the urgency of action. That is ***the proper way*** to pressure an independent branch of government, not jeremiads about what is and is not “acceptable” to the President. What is acceptable to Presidents does not matter until Congress decides to pass a law. "

What is acceptable to a President who purports to, or can demonstrate capacity to, speak as the Vox Populi can matter greatly in what the legislative processes have degenerated into since 1933.

Politics is practiced as an art of creating and maintaining perceptions.

The perceptions that the incoming executive seems to intend to establish and maintain include being the Vox Populi (whether he can be or not). However, it is possible that he can establish and maintain that perception sufficiently to have a direct effect on the legislative processes. As noted, this has occurred before in the exercise of the office of President.

The "cat herding" required in the current legislative processes leaves little effort available for the creation and maintenance of perceptions. The advantage is to the Executive.

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Image of R Richard Schweitzer
R Richard Schweitzer
on January 17, 2017 at 14:22:57 pm

Greg:

Sometimes, the Vox populi *ought* not to be denied, or, it should at least be heard.

Structurally, (original structure, that is) you are correct. Yet, given the 17th Amendment there is no longer any "deliberating" influence on either the Legislative or Executive, the Senate itself having come to (purport) represent the Vox Populi (or Vox Party-li).

As Richard states above, given such conditions the advantage is with the Executive; moreover, given the use to which the Light Bearer made of that "advantage", it may very well be prudent to make (temporary) use of that same Executive advantage before the "cat herding" works it's attenuative powers.

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Image of gabe
gabe

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.