Can the President Do as He Pleases?
Former Congressman John Dingell, the longest-serving member of Congress in U.S. history, a skillful master of the arcane rules, procedures and precedents of the House of Representatives, once declared: "I'll let you write the substance ... you let me write the procedure, and I'll screw you every time."
President-elect Donald Trump is about to collide with the realities of Washington. If he comes to the capital with any mandate at all, since he lost the popular vote, it is to change the way things are done.
Recent presidents before him have made that promise. They were not successful. The angry electorate, frustrated by gridlock, demands action. He intends to give it to them.
He can undo what Obama has done through executive action with the stroke of a pen. He can eliminate Obama's immigration actions, particularly the Deferred Action for Childhood Arrivals program (DACA). He can kill the Clean Power Plan, addressing climate change (which Trump has labeled "a hoax"). And, Trump can foil the efforts to improve gun safety by tightening rules applying to gun shows.
But what about his ambitious legislative agenda?
The Founders intended the process to be slow and inefficient. They feared giving the president the kind of powers kings had commanded.
If Trump intends to act quickly to repeal (and replace) Obamacare, he will collide with the formidable powers of the Congress.
Put aside the enormous political jeopardy involved in booting 20 million people off their health insurance. How swiftly can the wheels spin? Trump has a Republican majority in the House, led by Speaker Paul Ryan, poised to act. In fact, the GOP majority has already voted 60 times to repeal the law.
The Senate is a very different body. The Democrats retain enough seats to wield the filibuster to block legislation or at least force negotiation and compromise. Overcoming filibusters requires three-fifths of all senators, 60 votes.
But there is a way around the filibuster.
The Republicans have signaled an attempt to use a budget reconciliation process never intended for such use when it was adopted in the 1974 Budget Act.
It is time-consuming and won't complete the job of eliminating all of Obamacare. It requires that provisions have budgetary impact. What's known as the Byrd Rule could be used against provisions that don't qualify. Waiving it requires 60 votes, cancelling out the advantage of reconciliation. By no means would it permit the enactment of a credible replacement to help those millions of Americans dependent on the Affordable Care Act.
Also high on the president-elect's list will be a Supreme Court justice to fill Scalia's seat.
Democrats will be unhappy with any nominee taken from the list Trump revealed during the campaign. Beyond that, they will feel the appointment was wrongly snatched away from Obama. They will see the Trump appointment as illegitimate.
This will probably mean a filibuster.
In November 2013, then-majority Democrats used a parliamentary ploy to reinterpret the filibuster rule for nominations. Although the rule specifies a three-fifths vote (60) is necessary, and the presiding officer so ruled, Democrats voted to overturn the ruling, creating a precedent interpreting three-fifths to mean "a simple majority." However, they exempted Supreme Court nominations.
This questionable procedure has been given the label "nuclear option." The Republicans, faced with a prolonged blockade of the ninth justice, could roll that precedent out and extend its application to the Supreme Court.
Use of the nuclear option would be regrettable because it would signal to future presidents that with a majority in the Senate, they would be free to select partisan and ideologically pure nominees and ignore the views of the minority entirely. This would greatly and permanently politicize the court.
I hope the ugly and toxic presidential election we have just been through will not encourage and accelerate the abusive use of reconciliation and filibuster rules and other precedents, but I fear it will.