2017-02-17 / View From Here


Trump and Congress

One significant aspect of the transition to the Trump Administration is how the newly inaugurated President will interface with the recently elected Congress.

Mr. Trump and the Republicans begin the new Presidency with substantial majorities. Republicans in the Senate scored a surprise win when they held control of the Senate despite having to defend 24 of the 34 seats up for election. In fact, the GOP lost only two seats, and retained control of the Senate by a 52-48 margin. Of course, Vice President Mike Pence has a vote in the event of a tie, so, absent a filibuster, Democrats need support of three Republican senators to prevail in a vote of all the Senators.

In the House, Republican held on to their strong majority in 2016, losing just a handful of seats. As of this writing, there are 239 Republicans, 193 Democrats and 3 vacancies. Generally speaking, party control is important in the House, since the rules provide for relatively few ways for a minority to impede the actions of the majority.

Back to the Senate, a move made by the Senate Democrats when they controlled the Senate under President Obama in 2013 is dramatically weakening the power of current Democratic Senators. Before 2013, presidential nominees for both executive and judicial office were covered by the Senate filibuster rule, which meant that confirmation votes of nominees could be blocked unless they had the support of 60 senators voting to end debate on the nominee. A vote in 2013 under Democratic majority leader Harry Reid, however, ended the applicability of the filibuster for all nominees except for the Supreme Court. The result is that Mr. Trump's nominees, even hotly contested ones, have been able to squeeze through the Senate on simple majority votes. The most dramatic example of this was Mr. Trump's nominee for Secretary of Education, Betsy DeVos, who won confirmation on a 51-50 vote, with Vice President Pence breaking the tie.

Of course, the filibuster rule still does apply to Supreme Court nominees, including Mr. Trump's choice for the Supreme Court, Judge Neil Gorsuch. Thus, in theory, Judge Gorsuch's nomination will require the support of 60 Senators (including at least 8 Democrats). However, nothing stops Republicans from attempting to abolish by majority vote the filibuster rule for Supreme Court nominees, just as Democrats abolished it with respect to other nominees in 2013. The Democrats could attempt to filibuster Judge Gorsuch, a move that would please the anti-Trump base, but this would almost certainly be a futile gesture and would likely result in both the nominee's confirmation and the loss of ability to filibuster future high court nominees. The Democrats would probably be best advised to hold their fire against the well-respected Judge Gorsuch in the hope of blocking a weaker future nominee.

Of course, there will come a time when Congress will be considering substantive legislation favored by the Trump Administration and not just nominations. Because there are strong GOP majorities in the House, most of the action will likely revolve around the Senate.

Some legislation, like changes in the tax code, will be able to pass on simple majority votes in the Senate through the “reconciliation” process because the changes relate to the budget, so long as these provisions go out of effect in 10 years. Some parts, but not all, of the repeal of Obamacare can also be effected by reconciliation. On the other hand, some health care changes and other parts of President Trump’s agenda, for example building the wall with Mexico, would likely require 60 votes. It remains to be seen if Mr. Trump can get support from many Democrats. One thing in Mr. Trump’s favor is that a number of Democratic senators up for election in 2018 come from states that Mr. Trump carried (sometimes easily) in 2016, for example, West Virginia and North Dakota.

In sum, Mr. Trump has a good, but certainly not perfect, hand in dealing with Congress.

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