Via Business Insider, I … can’t help but suspect that many right-wingers will soon take a much rosier view of executive power when the legislature is paralyzed than they did for the past eight years. In fact, one complaint seen on righty social media last night after the Ninth Circuit’s ruling on Trump’s travel ban is why Trump is left to fight this policy battle alone, without help from Congress. Ross Douthat summed it up this way:
The American system increasingly has two real branches of government, plus a vestigial legislature.
— Ross Douthat (@DouthatNYT) February 9, 2017
It’s not just Hannity among the conservative A-list who’s grumbling about the tortoise pace of legislative action. Some House conservatives, like Jim Jordan, have complained about it recently and Matt Drudge, a Trump superfan, chimed in on Twitter a few days ago demanding to know what the hold-up is on O-Care and tax reform. All of which is excellent populist fodder: You can’t go wrong reassuring a restive grassroots audience that Congress is a bunch of gutless layabouts, especially if you’re a fan of the president and looking to condition the public to give him more power.
But this is more complicated than it looks. For one thing, the Senate GOP is jammed up right now by Democratic tactics to slow-walk Trump’s cabinet nominees. That’s resolving itself hour by hour as the time for debate on each nominee expires, but getting Trump’s secretaries in place is a top priority at the moment. For another thing, it’s not just Republicans in Congress who are urging patience among the base in moving their agenda, especially when it comes to ObamaCare. Hannity being Hannity, this monologue is a full-throated defense of Trump as a man of action and condemnation of the dithering Ryan-led Republicans in Congress as cowards who are blowing an opportunity — but it was Trump, not Ryan, who warned Americans last Sunday that the repeal-and-replace process might take until 2018. It’s Trump, not Ryan, who has pointedly held off on undoing Obama’s executive amnesties, much to the dismay of border hawks like Steve King. It’s Trump, not Ryan, who prioritized the travel ban as his first big policy fight rather than tax reform. Of course it’s true that Trump has acted more boldly thus far than Ryan and McConnell have in securing gains for the party, but that’s due to the nature of the two branches. All the president needs to do to make something happen in the executive branch is to grab a pen. Making something happen in the legislative branch takes time. As it was supposed to.
It also requires 60 votes in the Senate (at least for now), and therein lies a major problem. The Senate GOP can avoid a filibuster by using reconciliation to repeal chunks of ObamaCare, like the mandate — but it can’t repeal all of it. Importantly, it probably can’t repeal the regulations that require insurers to provide coverage to people with preexisting conditions, a main driver of costs under the program. It’ll probably take 60 votes for that, which creates a dilemma for Republicans: Do they really want to risk eliminating the mandate, the key revenue mechanism under the law, via reconciliation knowing that they can’t eliminate the main expenditure provision at the same time? That’s a recipe for a death spiral, which would mean lots and lots and lots of dropped coverage and lots and lots and lots of angry voters. Trump seems to understand that, that there aren’t 60 votes for a plan to avert that death spiral — at the moment — which is why he’s looking to 2018. Why is it the fault of congressional Republicans that they don’t have a filibuster-proof majority in the Senate?
Same problem with tax reform. The GOP can do a lot via reconciliation, which requires only 51 votes, to change the tax laws. But it comes with caveats:
The key advantage of pursuing the budget reconciliation approach for Republican leaders is that they would not have to compromise with Democrats. On the other hand, the use of budget reconciliation would have two disadvantages. First, reconciliation bills prohibit provisions that do not affect revenue or spending. This restriction could exclude many of the transition and enforcement provisions that are required to make comprehensive tax reform legislation work. Second, budget reconciliation legislation may not result in revenue losses outside the ten-year budget, which the Republican proposals almost certainly would. To get around this requirement, Republican lawmakers could allow the tax reform legislation to expire after 10 years, which is the method they took to pass the revenue-losing Bush tax cuts in the early 2000s. However, this approach creates uncertainty in the tax code and opens the door for Democratic lawmakers to roll back the tax reform package when it expires, as happened in 2012 with the Fiscal Cliff Deal.
The Bush tax cuts were enacted via reconciliation, you’ll recall, and were also subject to a 10-year sunset provision. Because of that, the top income tax bracket reverted to its pre-Bush levels in 2012. If you want this year’s tax reforms to be permanent rather than limited by another 10-year sunset and another big congressional standoff circa 2027, you need Democratic cooperation. That means 60 votes, and most Senate Dems are in no mood to provide those votes right now — but they might be eventually, especially since there’s bipartisan consensus on certain key issues (like lowering corporate taxes). As the midterms bear down on red-state Dems like Joe Manchin, they might be willing to compromise with the Great Negotiator in the White House and produce a package that can be passed cleanly in Congress, enshrining Trump’s tax program as permanent law. But that’ll take time, and Hannity and other populists are unwilling to wait.
Here’s an idea. If Trump wants to speed things along in the legislature so that he isn’t stuck fighting court battles over executive orders, he could try being a bit less antagonistic to legislators on the other side, like mocking Chuck Schumer for tearing up over refugees, and searching for areas on which the parties might compromise, to build trust. (And in fact, he might be doing just that.) It may not work despite his best efforts — the left craves a “resist at all costs!” approach to Trump, which is too bad and about which there isn’t much the White House can do. But he can do what he can do on his end. It can only help Ryan and McConnell to pick up the pace if he’s more conciliatory with critics.