Prevalent among political actors of all stripes today is a worrisome tendency to dismiss the Constitution’s constraints when those constraints run counter to a desired outcome.
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.