There have been a lot of complaints — many from liberals, but some from sincerely alarmed conservatives — that Republicans are not doing enough so far to stand up to President Trump. The need for a Republican check on Trump is real, but many of the complaints misunderstand what checks and balances are, what is normal to expect this early in a presidency, and what has actually happened in the first month of Trump’s term.
Balancing the Checks
Four points are worth remembering at the outset.
First, a brand-new administration is different from one that has been fully staffed. Trump has been president for only a month; he’s still in the “honeymoon” period when new presidents traditionally enjoy elevated support, especially from those in their own party. While many people who voted for Republicans for the Senate and House did not vote for Trump, and while exit polls showed that around 10 percent of voters (most of them Republicans) backed Trump despite viewing him unfavorably, most of the constituents of most elected Republicans voted for Trump and want to see him succeed in the White House. Even conservatives who opposed Trump root and branch during the campaign do not want American government to be completely dysfunctional for the next four years. Nobody who lives in the real world should expect congressional Republicans, even those who greatly dislike Trump, to treat him from Day One like a second-term lame duck.
Second, remember an enduring truth of political combat: You pick your battles or your battles pick you. If you try to fight everything, you will wear yourself out and give your adversary the initiative to concentrate forces to fight you on the turf that favors him most. Congressional Republicans couldn’t and didn’t fight Obama on everything. Even when they openly opposed and refused to cooperate with an Obama initiative, they didn’t use every possible point of leverage to torpedo it. (E.g., they never used the power of the purse to defund Obamacare.) It’s not practical for Republicans to fight a president who (at least nominally) agrees with them on many issues and is supported by their voting base with more vigor on more fronts than they fought a president with whom they and their voters disagreed on nearly everything.
Third, checks and balances are not always public and visible. Every elected official, even Trump, operates under constraints, and responds to messages delivered privately or implicitly. Things that never happen are just as important as things that are attempted and thwarted. And personnel is policy: A leader surrounded by conservative people will be more likely to do conservative things, a leader surrounded by competent people will be more likely to do competent things, and a leader surrounded by normal people will be more likely to do normal things.
Finally, our system of checks and balances varies by the issue. Presidents have a range of powers, some of which Congress has very little ability to stymie, and some of which don’t work at all without Congress’s active cooperation.
Checking For Balance
Where, then, can we expect Republicans — on Capitol Hill, within the administration, in state capitols, and outside of government — to rein in President Trump?
Twitter: A lot of the outrage over Trump’s conduct in office comes from his tweets and from other statements made by Trump and his press spokespeople. And not without reason: On a daily basis, this White House says things that can’t be defended with a straight face, and its campaign against the very concept of objective truth should be alarming.
Lacking any means to actually stop Trump from running off his mouth, Republicans would be smart to focus their attentions on actual exercises of government power.
Yet, there’s hardly any aspect of the Trump presidency over which other Republicans have less influence than Trump’s Twitter feed, which even his closest aides have tried and failed to restrain. Nor is there really that much Congress could do about Trump’s press conferences, or spokespeople such as Sean Spicer and Kellyanne Conway. Twitter is a private platform, and even the public communications of Trump and his press staff are far beyond congressional control. Republicans who attempt to denounce — or, worse, justify — everything Trump says will never have time to do their own jobs.
The calculating response is to start by denouncing those things that are in one’s political interest to denounce. The right response is also to weigh in now and then on a few things that really demand pushback, political expedience be damned. That is more or less the approach people such as Paul Ryan, John McCain, Marco Rubio, and Lindsey Graham took during the campaign. Others, such as Mitch McConnell, have chosen to simply wash their hands of Trump’s statements. But lacking any means to actually stop Trump from running off his mouth, Republicans would be smart to focus their attentions on actual exercises of government power.
The Cabinet: One area where Senate Republicans have a veto on Trump, if they choose to use it, is his executive-branch nominees. But their goals for the president’s cabinet are sharply divergent from those of their Democratic colleagues, and so has been their response.
Seven Democrats, including Kirsten Gillibrand, Bernie Sanders, Elizabeth Warren, and Cory Booker, have voted against almost all of Trump’s nominees so far. All but five members of the Democratic caucus have voted to oppose at least half of Trump’s nominees. This is an unprecedented level of blanket rejection of a new president’s ability to staff the Executive Branch, dramatically different from the opposite-party response to Barack Obama or George W. Bush at the start of their tenures. Nine members of Obama’s Cabinet were confirmed unanimously, and only three were opposed by even half of the Republican caucus: Tim Geithner (confirmed 60-34), Kathleen Sebelius (confirmed 65-31), and Eric Holder (confirmed 75-21). Hillary Clinton was confirmed 94-2, Janet Napolitano by unanimous voice vote.
The volume of “no” votes (even against highly qualified subject-matter experts such as General James Mattis and Congressman Tom Price) suggests a depth of opposition unrelated to the qualifications of any individual nominee. Gillibrand, for example, seems to believe we should simply go four years without a secretary of state, a secretary of defense, a secretary of the treasury, or an attorney general. No president since Andrew Johnson has faced such congressional resistance to his executive-branch staffing preferences. If that’s your standard for “checks and balances,” Republicans in Congress are obviously not going to satisfy you.
Republicans can and should vote down bad nominees, though — not only those they see as conventionally unqualified or disqualified, but also those whose backgrounds or beliefs place them beyond the pale of the party’s values. But for the most part, that’s not who Trump has nominated. If you wanted to deter Trump from picking nominees who are outside the Republican mainstream, you’d be hard pressed to complain about his choices. People such as Mattis, Price, Nikki Haley, Rick Perry, Elaine Chao, Mick Mulvaney, and Mike Pompeo would have fit comfortably in any Republican administration. Jeff Sessions is closer to a “Trump-style” nominee, at least on immigration, but is professionally well qualified and has long been a member in good standing of the Senate GOP caucus. Betsy DeVos is a long-time conservative activist, a donor to lots of normal Republicans, and the wife of a former Republican candidate for governor of Michigan. Trump’s unconventional nominees have mostly not been alt-right rabble-rousers but business-community figures such as Rex Tillerson and Steve Mnuchin. Again, personnel is policy: The more Cabinet Departments that are in the day-to-day control of sober, responsible people, the more we can expect Trump’s more eccentric and dangerous impulses to be blunted.
Faced with a mostly conventional slate of cabinet nominees, Senate Republicans have acted the way you’d expect. Two balked at DeVos because they disagree with her; a few others had reservations about Tillerson’s posture towards Russia but gave him the benefit of the doubt; more bailed (some publicly, some behind the scenes) on Andy Puzder, who was withdrawn. (Notably, the replacements for Puzder and for General Michael Flynn have both been more conventional figures.) But most have voted to confirm nominees they would have supported under any administration.
The White House Staff: If you want to see why Senate confirmation matters, look at where Trump stuck more problematic nominees such as Flynn and Steve Bannon: on the White House staff, in positions not requiring the Senate’s advice or consent. Flynn’s swift downfall seems to have been driven, as much as anything, by his crossing of the most powerful conventional Republican in Washington, Vice President Pence. Given Bannon’s malignant influence (especially on the National Security Council, for which he is totally unqualified), there are plenty of good arguments for Reince Priebus, Paul Ryan, Senate Republicans, and possibly Pence to pressure Trump to get rid of him — but the wisest bet for anyone who wants such a push to succeed is to wait as Bannon makes himself a political liability, rather than attempting to make him one. If Priebus, for example, were to lose a power struggle with Bannon now, it would likely cost him his job, isolate Pence, and elevate Bannon. So instead, he appears alongside Bannon at CPAC and plays nice in public. Bannon must nevertheless know that almost nobody in the Republican party will stand up for him if he gets in hot water or loses Trump’s confidence.
The Courts: There’s no greater exercise of presidential power — with the possible exception of sending the nation to war — than appointing the judges of the federal judiciary, the most powerful and least accountable branch of the federal government. While the Senate owes some deference to the president’s judicial nominees, as opposed to his cabinet picks, there’s no presumption that Trump is entitled to stock the judiciary with loyalists. In the past half century, Harriet Miers is the only Supreme Court nominee to be rejected primarily due to opposition within the president’s own party, and Miers’s nomination failed because she was seen as a personal crony of the president unqualified for the job, rather than a qualified, committed exponent of the party’s principles.
Whether or not he was swayed by the behind-the-scenes influence of Senate Republicans, Trump went the conventional route with his first SCOTUS pick. Rather than choosing a hack or a loyalist, he chose Neil Gorsuch, a brilliant, principled, originalist from a movement-conservative background who is notably skeptical of executive overreach. Gorsuch’s nomination would have cheered Republicans even if it had come from a Ted Cruz-type Republican president. So Republicans have no need to check Trump thus far on the courts; he has acted as if the check was already there.
Legislation and the Budget: Writing laws and dictating federal taxation and spending are jobs for Congress. Trump can do neither without its help, and it can and should reclaim its control over these traditional legislative functions. The good news is that that’s exactly what has happened so far. If anything, Congressional Republicans could use more help and support from the White House than they are getting. On health care, Trump has so far deferred even more to Congress than Obama did in 2009-10, when he wound up with a plan that differed significantly from the one he ran on. On taxes, in sharp contrast to George W. Bush, Trump has similarly let Ryan do the heavy lifting, only issuing the occasional statement about how he’d like to see tax policy shake out. Trump’s signature spending proposal, a massive WPA-style infrastructure bill that Bannon once touted as carrying a $1 trillion price tag, has reportedly been pushed into 2018 so that Congress can pursue Ryan’s health-care and tax priorities first. The president will still have a say in the final shape of the 2017-18 legislative and budget agenda, but Congress is so far the dominant influence on major legislative and budget priorities. None of this, it should be pointed out, has happened as a result of open Republican opposition to Trump.
Executive Orders and Foreign Policy: Conventional Republicans may diverge more sharply from Trump when it comes to those powers more firmly within the constitutional purview of the executive branch, from executive orders to regulations to foreign policy.
Of course, when Trump issues orders that invade the lawmaking powers of Congress, Congress should put up a fight, just as it repeatedly did in the face of Obama’s executive overreach. But aside from Trump’s refugee order, which was at least arguably within powers given him by Congress, there has been little in his executive actions to raise any real concerns of overreach. Most of his executive orders have instead been directed at repealing Obama’s orders, restoring ones made by prior Republican presidents, and restraining federal power.
Conventional Republicans may diverge more sharply from Trump when it comes to those powers more firmly within the constitutional purview of the executive branch.
Trump’s foreign policy has attracted a few early critics, notably the “neocon” triumvirate of McCain, Rubio, and Graham and the more anti-interventionist faction of Rand Paul and Justin Amash. All of these men would likely have asserted their independence from the foreign policy of a President Kasich or Cruz, too. And McCain in particular has chosen a path of constructive engagement, rather than simply backseat driving; he’s been traveling to NATO allies to deliver a message of continuity, and working to bring Tillerson along with him.
As for the refugee order itself, it was enjoined so quickly by the federal courts that there was not much reason for elected Republicans to fight it — and cooler heads have once again prevailed, with the administration now working at a more gradual pace to produce a more carefully drafted replacement order.
Investigations and Impeachment: Trump has so far prompted an unprecedented number of demands for congressional-Republican oversight investigations. Since World War II, there have been precious few investigations of a sitting administration during times of one-party government. There were virtually no investigations of the Obama administration by the Democratic Congress in 2009-10, or of the Clinton administration by the Democratic Congress in 1993-94. Though in the latter case the existence of an independent counsel investigating Whitewater gave Democrats an excuse for inaction, the first Travelgate and Filegate investigations weren’t launched until after Republicans won back Congress in the 1994 midterms. Democrats are therefore asking Republicans to meet a higher standard than they themselves have met.
Of course, Republicans should hold themselves to a higher standard. And however reluctantly, they are: The Senate Intelligence Committee continues to move toward an unprecedented investigation of Flynn’s departure and the Russian efforts to influence the 2016 election, with a number of Republican senators calling for a thorough investigation and testimony from Flynn.
Re-Election: Finally, Republicans will have to decide whether to support Trump for re-election in 2020. The bar for a primary challenge to a sitting president is a high one, but major figures in both parties have crossed that line when they felt it was justified, most notably Ronald Reagan in 1976 and Ted Kennedy and Jerry Brown in 1980. But 2020 is still a long ways away. For now, Trump’s Republican skeptics can and should take a wait-and-see approach to his reelection.
The System Still Works
Left-wing calls for unprecedented bipartisan “Resistance” to Trump return again and again to the notion that any Republicans who collaborate with Trump are tantamount to right-wing Germans who tried to work with Hitler (thinking they could control him) and ended up enabling his transition from democratically elected leader to dictator. But for all of Trump’s authoritarian instincts, he’s not Hitler. Hitler in 1933 was 44, a political fanatic and hardened combat veteran of World War I with a decade’s experience leading a violent street movement full of his fellow veterans. Trump is 70, a political dilettante who’s addicted to cable TV, has spent most of his life making real-estate deals, and commands a political base disproportionately composed of people in their 60s and 70s. Moreover, America is not Weimar Germany, which was then a 15-year-old democracy crumbling amidst hyperinflation, a global Depression, and the loss of a war that killed 13 percent of its military-age men. We have a long history of absorbing and co-opting fringe movements into our remarkably durable two-party system, and that’s exactly what the rest of Republican leadership is trying to do with Trump. The struggle is far from over, but the early returns suggest that he is not as impervious to their efforts as he appeared.
Republicans have good reasons for opposing some of what Trump has done so far, and will no doubt have more reasons to oppose him in the future. But the idea that they are not influencing his decisions simply because they aren’t burning papier-mâché puppets in the streets is detached from the realities of American government.
— Dan McLaughlin is an attorney in New York City and an NRO contributing columnist.