As the year draws to a close the news cycle continues to be dominated by the transition of power to Donald Trump. While intense questions surround his social media accounts, cabinet picks and the general tone of his supporters, the big question now is this: “what will the national tone look like coming out of Washington this first year?” Based on the past month we already have a decent idea of how things are shaping up.
2016 is the year of the disaster. 2017 will be the year of the alarmist.
The meme quickly has become that “2016 is the worst” throughout this year. The meme for 2017 will be that the country is on fire and it’s not getting better. Between the news cycles, the alt-right and some of the rhetoric surrounding the transition, every move that the Trump administration makes is already set to be tied to Nazism. Whether justified or not makes no difference, that has already become the main comparison before his presidency has even begun and it surely will continue for the next 4-8 years. Alarmists will also paint everything in light of Trump being incapable of handling foreign policy decisions at best and at worst being a foreign puppet of Russia. Again, whether any of these are true or not is irrelevant, it is simply what will happen.
Alarmists would be wise to remember that any Trump attempts to implement truly bad policy or amend the constitution would be stonewalled for the first few years. The Democrats will not allow an amendment to the constitution to pass as long as they have the numbers which they should have his entire term, even if Dems come up massive losers in the 2021 round of redistricting. Dangerously unconstitutional legislation will not get past a Supreme Court still made up mostly of Clinton, Bush and Obama appointees. Hitler’s rise came in the midst of a martial era, on the back of a devastating and societal changing war, in a country then-susceptible to authoritarian rule (Germany had a strong monarch up until the end of World War I), that was based on a weak constitution, and located relatively close to a mortal enemy in the Soviet Union that could be scapegoated. Hitler also had dangerous rhetoric that was widely published and known before his rise, including an attempted coup in Munich. Trump is a reality TV star operating in a period of unprecedented global peace in a country with a strong constitution, a long tradition of democratic power exchanges, located in the historic safety of North America. Could a fascist dictator or a foreign puppet take over in the United States? Yes, even the founding fathers were aware of the distinct possibility. John Jay even published one of the Federalist Papers in defense of a strong government as a way to maintain integrity over a meddling European power. While the concerns exist, the deck is stacked here against those odds in a way that wasn’t true in 1930’s Germany.
Expect more deregulation than the Reagan or Bush years.
Ronald Reagan was the first successful presidential candidate in the twentieth century to push a full fledged deregulation political agenda. There were deep concerns that the “malaise” of the 1970’s was caused by a combination of institutional excess and over regulation which was unnecessarily constraining the American economy. To attack this perceived source of stagnation, Reagan implemented a number of conservative policies but the core of his deregulation plan lay in curbing the power of government agencies. In the United States, since the New Deal Administration of Franklin D. Roosevelt, Federal power executed via federal agencies had grown year after year in ways that did not exist in the 19th century. “Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda“. The bulk of the most well known agencies are technically delegated powers of the president via the executive branch and lead by appointed cabinet officials such as the Secretary of Education (who leads the Dept. of Education) or the Secretary of Energy (who leads the Dept. of Energy). There are 15 executive agencies, 10 of which have been created since 1900. There are also many independent agencies created by Congress with varying degrees of independence and power such as the Postal Service, Consumer Finance Protection Bureau or the CIA. The proliferation of agencies and agency powers over the 1900’s has created countless layers of red tape, bloated government budgets and caused the federal and state governments to clash time and time again. One of the hallmarks of the left versus right cultural divide is that the left wants to use expansive government power to better society and halt societal wrongs while the right wants to reduce the size and scope of government and allow society to govern itself through the free market.
Reagan’s theories seemed valid when the 1980’s proved to be a period of tremendous economic growth and he swept into office in ’84 winning every state except Minnesota. Reaganism proved so popular it helped his vice president, George H.W. Bush, win the presidency in ’88 and then deeply influenced Clinton’s own policies for the democratic platform which won in ’92, ’96 and almost won again in 2000. Even then, Reaganism was a core trait of neo-conservative ideology for the two George W. Bush terms.
Reagan’s administration was the first to set a procedure in place to add some oversight to the administrative rulemaking process. Subsequent presidents added their own oversight procedures to the rulemaking processes. In some ways Reaganism’s anti-regulatory agenda has continued even into the Obama years. In 1980, Jimmy Carter’s last full year, there were 7,745 new rules published in the Federal Register. Reagan decreased this from 6,481 new published rules in 1981 to 4,697 in 1988, his last full year. George H.W. Bush bottomed out at 4,155 in 1992 and while Bill Clinton brought that number back up, he never broke 5,000 new rules during his two terms. George W. Bush decreased rulemaking from the low 4,000’s to the high 3,000’s per year to which Obama has largely maintained. Indeed, dating back to the Carter Administration it is Barack Obama who holds the record low in new rules published in a given year with 3,410 in 2015.
The continued decrease in new agency rules through the Obama Administration appears opposite of the narrative that Obama governed via agency rules and executive orders (250 EO’s to Bush’s 291 and Clinton’s 364). That narrative paints a half truth. The Obama Administration has issued less new agency rules and he has issued fewer executive orders than his predecessors but he has issued more “major” rules than those before him. This is likely why Obama is seen as a rulemaking president despite maintaining the 3,000 per year new rule totals that were established by George W. Bush.
According to 5 U.S.C. §804(2) a rule is considered “major” if the Office of Information and Regulatory Affairs Administrator “determines it has resulted in or is likely to result in:
(A) an annual effect on the economy of $100,000,000 or more;
(B) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or
(C) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign based enterprises in domestic and export markets. The term does not include any rule promulgated under the Telecommunications Act of 1996 and the amendments made by that Act.”
Obama definitely pushes for more major rules than his predecessors including hitting 100 such rules in 2010. In Obama’s defense, due to gridlock in the Legislature, he has been forced to govern through the rulemaking process and several early years of his Administration were spent dealing with the 2008 financial crisis as quickly as possible.
If Trumpism is to be a rebellion away from the core tenants of Obamaism then one has to expect that a further decrease of administrative rules would be par for the course but with fewer major rules than the Obama years. If Trumpism is a wholesale rejection of the political status quo then there is a real possibility that Trump might rule more by executive action than his immediate predecessors, bringing us back to the pre-Reagan years. This seems doubtful since Trump will have the cooperation of Congress, something we haven’t seen since the early Bush years between a president and the Legislature, and should have control of the Supreme Court as well as many state governments. With such cooperation it would make more sense for Trump to govern via legislation rather than agency power. In addition, because Obama often had to govern through unilateral and agency actions this makes his rules extremely susceptible to be removed by an opposite executive with some ease.
How many Obama policies will be repealed?
Repealing Obama regulatory rules will be easy and will likely be a systematic policy goal of the Trump Administration throughout 2017. Whether or not Trump can work with Republicans in the Legislature to dismantle Obama’s policy achievements has yet to be seen. It doesn’t seem like a stretch to say, that at least for this election cycle, the president will work well with the Legislature to create an operational government. Based on the news that has come out that the incoming Congress is already setting the stage for mass rule repeal, it would seem this working relationship would be a non-issue. The Congressional Review Act allows a new Congress to review and intervene in rules made in the last few months of an outgoing presidency. Congress will have to act fast as the process can only occur in the first few months of a new legislative session but Republican leadership is already taking this opportunity seriously. Senator John Barrasso of Wyoming, the Chairman of the Senate Republican Policy Committee has already released a list of Obama Administration rules that are clearly in the GOP’s crosshairs heading into the first few months of 2017. This list includes the controversial overtime rules that were blocked by a Federal judge over Thanksgiving weekend a month ago and a Department of Health and Human Services proposed rule (expected to be finalized on Jan. 20) that could prevent states from blocking Title X funding to Planned Parenthood. The House Freedom Caucus has already provided Trump with a “wish list” of 228 rules that they would like examined or revoked. This list ranges from ending the Export-Import Bank and ending Michelle Obama’s anti-childhood obesity initiatives to energy efficiency provisions for washing machines and ceiling fans.
The Congressional Rules Act has only been used successfully once before when Republicans nixed a Clinton era rule regarding workplace ergonomic safety in 2001. Democrats have already begun to brace for the onslaught of rule repeals. A spokeman for Democratic Senator Minority Leader Chuck Schumer stated:
“They’d be voting to let Wall Street run wild, to allow companies to evade their taxes, and to make the environment less safe. Republicans have the votes to erode these protections, and they’ll be the ones to bear the blame if they succeed.”
The saving grace for the Democrats is time. The CRA stipulates that agencies must submit major rules to Congress, who then has up to 60 working days to overturn them. Debate on disapproval resolutions is limited but each resolution would eat up one to two days in each chamber of Congress. If Democrats take a page out of the Republicans playbook and lean hard into obstructionist tactics, they could mitigate much of the potential damage the GOP could deal to the Obama Administration via the CRA. This is especially true when one remembers that the Legislature will have much on its plate in the initial days of the Trump Administration. The Senate will spend many hours evaluating and approving Trump appointments, there will be a scramble to repeal the Affordable Care Act and filling the vacant Supreme Court seat will be a priority as well. It should be noted that the Republican majority in the Senate is only three defections away from allowing the Democrats to block simple majority votes on things like appointments. A controversial Trump appointment, of which their has already been several, can be nixed if Republican unity begins to waver.
The biggest target aside from agency rules is the Affordable Care Act. It is almost certain that the Republican review or repeal of ACA will be far more complex than an up and down repeal vote. Even on Trump’s campaign website it states (note the bolded section mirrors Trump’s campaign website):
“However, it is not enough to simply repeal this terrible legislation. We will work with Congress to make sure we have a series of reforms ready for implementation that follow free market principles and that will restore economic freedom and certainty to everyone in this country. By following free market principles and working together to create sound public policy that will broaden healthcare access, make healthcare more affordable and improve the quality of the care available to all Americans.”
Trump’s site goes on to list seven reform points. The first is a repeal of ACA with an emphasis on the individual mandate. His remaining points include “modify existing law that inhibits the sale of health insurance across state lines”, “allow individuals to fully deduct health insurance premium payments from their tax returns under the current tax system”, comprehensive health savings account reform, price transparency provisions when shopping for health care, “block-grant Medicaid to the states” and the removal of “barriers to entry into free markets for drug providers that offer safe, reliable and cheaper products.” The full rundown on Trump’s official position, and the reference for the above position, can be found here.
Unlike the previous few years where Republican legislators constantly voted to repeal ACA, with the expectation that Obama would veto the attempt, a new repeal attempt would surely be cautious. Senate Majority Whip John Cornyn has stated:
“We’re talking about a three-year transition now that we actually have a president who’s likely to sign the repeal into the law. People are being, understandably cautious, to make sure nobody’s dropped through the cracks.”
It is unknown what a Republican replacement would look like for ACA, but expect a quixotic combination of speed and caution, maintenance of its most popular provisions and heated political battles. Republicans distinctly remember the massive defeats handed to longtime Democratic legislators when the Obama Administration had to use every inch of their supermajorty to pass ACA in 2009. They also remember how Democrats that voted against ACA were punished for their party’s position instead of their own. The New York Times reported in 2010:
“Among 22 [Democrats] who provided crucial yes votes from particularly risky districts, 19 ended up losing on Tuesday. That included all five members who voted against a more expensive House version last November and then changed their votes to support the final legislation in March…Indeed, among 49 Democratic incumbents who lost on Tuesday, 32 had voted for the health care law and 17 against it.”
Republicans will not accept an unpopular replacement deal that their constituents will not approve of and in turn vote them out for in 2018.
Other Obama policy targets could include the Dodd-Frank Act and entrenched Obama era rules like the Clean Power Plan. There is also the possibility that Trump would then go after larger “liberal” governmental apparatuses such as the existence of the EPA or United States support for many international agreements via the United Nations. Such grandiose plans would surely come after the 2018 midterms. The immediate goal is erasing the perceived excesses of the Obama Administration.
Something to consider, once those Republican white whales have been slain, the honeymoon could quickly be over for the conservative coalition. A common enemy can easily unite adversaries and Obama has been the perfect scapegoat or enemy (depending on your point of view) for conservatives for nearly a decade. At some point in this administration Obama’s policies will be undone and he will fade from the public view, not dissimilar from George W. Bush in 2008. When that happens and the Republicans have to actually create policy, they will be in uncharted waters. The Tea Party movement was always about opposition to policy, not so much the creation of it, and actual Republican policy creation at the state level is varied. Much of the policy platform at the state level comes back to cutting budgets across the board, taking pro-business regulatory stances and repealing taxes. Many Republican policies have been little more than shots across the Obama Administration’s bow, designed to further conservative policy in the immediate term while testing the limits of federal law in the courts. A more comprehensive breakdown of conservative policies is coming soon in a post about the coming legislative state sessions.
Will liberals resist in a meaningful way?
Liberals can lament that conservatives are suckers who were successfully duped by Trump into voting against their own interests. Maybe they are right and maybe they are wrong. Either way, in this context it doesn’t matter. This election proved that liberalism is in crisis and there is much work that needs to be done to save it. Whether liberals will take the time for introspection and rolling up their sleeves, or pass blame, is yet to be seen.
For liberals to mount an effective resistance they must come to term with two realities.
The first is that the failure of 2016 is just as much on the shoulders of Democrats as it is on any number of their opponents.
Chalking the loss of 2016 to sexism, racism, fake news, Russian hacking, the failure of American education, the electoral college and a plethora of other boogeyman achieves little and actually seems counterproductive in some ways. Donald Trump won because countless Americans do not benefit or identify with what liberalism has become. People did not want to vote for a career politician who is the real life inspiration for Claire Underwood. They want to vote for someone who understands the financial problems of American government and its people. Republicans gave an option who presented some sort of message that adhered to that desire. Democrats failed to do so. Many Democrats were not even allowed to question the presumptive nominee. As Salon writer Conor Lynch stated after the election:
“The Clinton campaign tried to make this election all about Trump’s hatefulness (“Love Trumps Hate”) and his “basket of deplorables,” while offering no real vision of progressive and populist change. And when those on the left raised legitimate concerns about Clinton’s uninspiring message or her political baggage during and after the primaries, they were ridiculously labeled sexist or racist “bros” by establishment figures.”
For the left, the classical liberalism of pragmatic economics and individual rights is increasingly seen to have given way to identity politics and elitism. The compassion for the working class has been replaced by disdain. Massive swathes of the country are viewed as useless at best and a liability at worst. I have no desire to dive into the “why conservatives think liberals are insane and vice versa” rabbit hole but before any repair work can begin to oppose Trump and prepare for 2018 the left must accept the realities of its political situation and the Democrats have to take an honest look at their party direction.
Part of that reality acceptance includes accepting these sentences for the truths that they are. Donald Trump is now president. The alt-right is a political force to be dealt with. The Republican Party is dominant with a majority House and Senate, a soon to be majority on the Supreme Court, 33 governorships, 68 out of 98 state legislative chambers, and almost 2/3 of all state legislative seats. The Republican Party has been dominant since 2010. The Republican Party will now have the inside track for 2021 redistricting efforts kicking the fabled liberal demographic shift down the road yet another decade. The left didn’t just fail in 2016, it took a sweeping mandate in 2008 and immediately squandered it setting the Democratic Party back a generation.
The second reality is that liberals can learn a lot from conservatives about winning and meaningfully stopping and resisting an administration they disagree with.
Liberals despise Republican obstructionism but it worked. By opposing Obama every step of the way,and painting him as the enemy, they have won election after election for six years in a row. Donald Trump, not Barack Obama, will fill Scalia’s vacant Supreme Court seat. Republicans forced Obama to rule by executive order and agency action which in turn would allow them to easily dismantle his administration the moment they won the presidency. Even if Hillary Clinton had won, the obstructionist strategy would surely have continued until 2020 or 2024, or however long the tactic allowed them to win legislative elections. The key is not the morality of the tactic, it is that the tactic worked and Republicans have continued to successfully label the president as an enemy while continuing to win seats in their own right across the board. If Democrats consider Trump to be a true enemy of the state, not dissimilar to the way Republicans believe Obama has been, then they would do well to remember the tactics of their opponents. Let Trump and the Republicans govern for two years, paint everything they do as a failure and push hard for a legislative majority in 2018. From there they can push wholly into obstructionism.
The crux of such a strategy is winning elections. Democrats have to turn out for midterms. The issue is not that Democrats do not vote in non-presidential years, its that they have not been turning out enough in recent years. It is easy to criticize liberals for abandoning Obama in 2010 and 2014 and Clinton in 2016 but let’s not forget that it was a midterm election that swept Democrats into power in 2006. Let’s also not forget that Clinton won the popular vote and the Democrats picked up six formerly Republican House seats. It wouldn’t take much for Democrats to win at the polls and take back a chamber of the legislature. Ironically, the more the Republicans phase out the Obama Administration and put his controversial policies in the past the more the Democrats might be able to create a new identity that resonates more with America outside of the cities. Remember, the Democratic Party quickly remade itself in the years between Michael Dukakis and Bill Clinton and then again from John Kerry to Barack Obama.
Liberals could even go further and make legitimate attempts to counter an issue that Republicans have to come to terms with, which is the GOP has essentially conceded inner cities to the Democrats. The New York Times quoted Stephen Goldsmith, the Republican former Indianapolis mayor and adviser on Bush’s 2000 campaign, in November who stated:
“We had an opportunity to reach broadly across the country to have an inspiring voice of opportunity, and there’s a set of coherent Republican policies that would amplify that opportunity. We’re doing the opposite. We’re insulting folks who could vote for us.”
Democrats dominate urban districts comprised of minorities and young liberal whites the same way that Republicans dominate rural white America. Learn from the Republican mistake here, reach out to areas that are not easy strongholds and stop insulting those you disagree with politically.
Maybe winning elections is as simple as getting out the vote. Maybe it is simply easier in the United States to win majorities when you can play the oppressed opposition card. Maybe sweeping aside a stagnant Democratic Establishment in an internal revolution not dissimilar from the Tea Party revolt that has been occurring since 2008 could do wonders for reinventing the Democrats. Regardless, the Democrats can learn a lot from Republicans and there are viable strategies to coming out of the 2016 disaster stronger than before.