This Changes Everything
Pretty much everyone thought Hillary Clinton would be the president-elect right now. As a result, few spent much time gaming out the scenario we find ourselves in: next year, Donald Trump will be the president, accompanied by a Republican (though not filibuster-proof) Senate and a solidly GOP House.
I’m as guilty as anyone. My last pre-election column was about what President Clinton would do to the Supreme Court. A month ago I tried to find Obamacare tweaks that Republicans could demand in exchange for helping to fix the law, because only a moron would think anything more dramatic might be possible.
So here’s an attempt to atone for my sins and outline the possibilities for a Trump presidency in a number of domestic-policy areas.
The Supreme Court
Trump promised to nominate a conservative to replace the late Antonin Scalia, and the possibilities he floated were well-received on the right. Assuming he keeps his promise, the only thing standing in the way is a Democratic filibuster in the Senate.
Problem is, Democrats eliminated the filibuster for non-Supreme Court nominations back in 2013 via the “nuclear option”—setting a precedent that could easily be followed in a second bombing mission, this time directed at nominations for the high court. And to up the temptation, just weeks ago Tim Kaine was mouthing off about how Democrats were already prepping the nuke. “If these guys think they’re going to stonewall the filling of that [Scalia] vacancy or other vacancies, then a Democratic Senate majority will say, ‘We’re not going to let you thwart the law,’” he said.
(It is not thwarting the law to stonewall a nomination.)
Unless they wimp out—a possibility that should not be discounted—Republicans are going to grab that bomb and set it off right in the Democrats’ faces, to the immense enjoyment of conservatives everywhere. Any Trump nominee acceptable to Senate Republicans will be confirmed, both to replace Scalia and in the event that another justice retires or passes away during the time Republicans have the Senate and the presidency.
In that case, everything I wrote last week is the opposite of reality. With Anthony Kennedy as the swing justice once again, there will be more victories for the conservative legal movement. And if Kennedy or a liberal justice is replaced with a conservative as well, some might get their hopes up about bigger wins, like overturning Roe v. Wade.
Here the politics are less straightforward. Obamacare has some highly popular provisions that cannot work without its other elements or some replacement for them. The ban on discrimination against those with preexisting conditions is a prime example—by itself, it would encourage people to wait until they got sick to sign up for insurance, setting off the dreaded “death spiral.”
And as with the Supreme Court, the Senate filibuster is an obstacle to any move Republicans might want to make. To get around this, the GOP has a few options: (1) pass the bill through the budget “reconciliation” process; (2) kill the filibuster for legislation too, not just nominations, which would be a drastic step; or (3) find some other creative workaround.
They already did a dry run of the first approach, sending a (predictably vetoed) repeal bill to President Obama. There’s an important limitation, though: only the parts of the law that affect the budget can be changed through the reconciliation process. The law’s insurance regulations, for instance, would still stand.
Another major question is whether to replace the law immediately, or sunset it gradually while a replacement is hammered out. Considering there’s some intra-party disagreement about how to replace Obamacare, and considering no one has actual legislative language handy, the second option seems wise.
(Both Trump and House Speaker Paul Ryan do have health-care plans outlined, though. Like most conservative health-care plans, these are attempts to combine flexible subsides with consumer choice and deregulation to provide coverage at an affordable cost.)
A note of caution will hang over the proceedings. Democrats passed Obamacare with zero Republican support, twisting the rules to avoid a filibuster after the election of Scott Brown. By the time problems with the law started cropping up, Republicans had gained some power back and refused to help fix the mess. If Republicans do what Democrats did in 2009 and 2010, Democrats will respond the way Republicans did when the tables turn once again.
Here’s an area where conservatives—at least conservatives in the “budget hawk” sense, as opposed to the “cut taxes and stick our kids with the tab” sense—should be worried. Trump’s tax plan involved trillions of dollars of tax cuts targeted at the rich, with nowhere near enough spending cuts to pay for them.
With most of Trump’s more harebrained ideas, we can hope that he’ll back off a bit, that new advisors will be more serious (or influential) than the ones he listened to (or didn’t) during the campaign, or that Republicans in Congress won’t send him a bill to sign. But Republicans love irresponsible tax cuts. They can’t help themselves. It will be a combination of sad and ironic if a signature achievement of a populist movement is to cut taxes for the rich.
This is one of those areas where we can expect Trump to back off of his campaign rhetoric a bit. Mass deportations and a ban on Muslim immigration won’t likely become a reality.
We could certainly see, however, a variety of real reforms that have been held up for years by a Washington consensus that the American people don’t share: things like more border fencing (which was already supposed to be built under a 2006 law), an end to “deferred action” (accomplished through mere executive action to begin with), stronger enforcement against employers who hire illegal workers, reduced levels of low-skill immigration, and enhanced (even extreme!) vetting of immigrants from regions especially likely to send us terrorists.
A silver lining for immigration supporters: getting the illegal-immigration problem under control could eventually make it easier to amnesty those already here.
Rust Belt states hammered by free trade voted for Trump, and they will reap the policy rewards starting on day one. Phil Levy put it well in Foreign Policy: by now, “President Barack Obama once hoped to have completed both Atlantic and Pacific trade deals, as well as a Bilateral Investment Treaty with China. It now appears he will conclude none of these.” Trump also would like to renegotiate NAFTA and pursue China more aggressively for unfair trade practices.
All of this just scratches the surface. Trump’s election completely changes the picture, from climate-change and energy efforts to criminal-justice reform. The electorate’s decision may prove right or wrong, but that it’s exciting is undeniable.
Robert VerBruggen is managing editor of The American Conservative. Follow @RAVerBruggen