Slowing the Republican Demolition Derby

Tearing down the Obama legacy—not to mention the entire edifice of federal laws and regulations that protect civil rights, the environment, labor, public health, and every other progressive cause—can be much harder than the forces of reaction currently imagine.

To be clear, I am not saying, “Don’t worry.” Like many Americans, I think the Trump victory a disaster. Even if he turns out to be a much better president than I fear—and that’s a low bar to jump—giving victory to a campaign driven by so much resentment, racism, misogyny and outright lying is horrifying. I am also aware of the familiar adage, “It is easier to tear down than it is to build up.” But there are hoops to be jumped, some narrower than others. The demolishers should be forced to wriggle through those hoops and they should always be ringed by fire.

The moment of reactionary opportunity exists most scarily because Republicans will control not only the White House, but also both Houses of Congress. Anyone who says, “We survived Reagan,” neglects the impact of a Democratic Congress. However, even if Republicans are willing to end the Senate filibuster—a less certain move than the bloodied warriors in my Facebook feed seem to think—four harsh realities face them.

First, politics. The Trump promises included not just “repeal,” but “replace,” and, especially in the case of the Affordable Care Act, Trump is already discovering that won’t be easy. In the case of the ACA, people are belatedly noticing that the impact of repeal would be to allow insurance companies once again to turn away applicants based on pre-existing conditions and to cap or end coverage, even in the face of dire need. There really is no way to maintain a private insurance industry with universal protections in place unless healthy people are required to buy insurance. Members of Congress are going to hear from industry, not to mention Trump voters who suddenly realize their vulnerabilities. This is not likely to be a one-day lift.

Similar political hurdles will face efforts to tinker with other regulatory statutes. Trump doesn’t think “clean coal” is an oxymoron? Fine. But how precisely to amend, say, the Clean Air Act or the Clean Water Act is not easy. Lots of businesses have already invested heavily in compliance, and the improvements in air and water quality that the public enjoys will not be insignificant concerns to state and local governments. The mere mention of environmental cutbacks will send fund-raising for environmental groups through the roof. Political mobilization can be a powerful force.

That brings me to the second fact of life for Republicans. Many in the GOP were relishing the prospect of a Clinton presidency with the likelihood that (a) the midterm elections typically bring losses to the party in the White House and (b) a Clinton elected over the falsely-assumed-to-be-weak Donald Trump would be immensely vulnerable to challenge in 2020. The parties’ fortunes have now been dramatically reversed. Any really unpopular GOP moves in the next few years make the Republicans much more vulnerable for the next two elections. Voters dashed Democratic hopes for a wave election in 2016, but the stakes are much higher in 2020 because of the implications for redistricting following the 2020 census. When the Democrats lost control of Congress in 1994, Bill Clinton capitalized on the public’s enthusiasm for environmental protection, support for education, and commitment to social security. None of that enthusiasm has gone away, and at least some Republican legislators are aware of that.

The third hurdle is simply agenda control. Mr. Trump may have free rein when it comes to appointing White House staff, but that will not be the case for cabinet secretaries and other key administrators who will have to run the Senate confirmation gauntlet. Candidates for these positions, unlike Mr. Trump, will have to share their tax returns, and the investigations into their qualifications and past activities will not be trivial. Democrats may be unable to stop such appointments, but they can create many an embarrassing and time-consuming hurdle. Sarah Palin facing a Senate hearing would be just one Democratic dream come true.

Finally, Republicans in Congress are not a united party. A significant number of GOP Senators have no vested interest in Trump’s personal success. (For different reasons, Senators Cruz, Flake, McCain, Paul, Rubio, and Sasse would all be unlikely champions for Trump.) If President Trump really wants to keep his 100-day commitments within the space of four years, he will need Democratic votes, sometimes a lot of them. Among the people who know this is surely Sen. Chuck Schumer, who is already now doubt figuring out many an appealing transactional pitch to make to his fellow New Yorker. He’d be wise to tee up Democratic versions of:

· Legislation to limit lobbying by former White House officials and members of Congress

· Legislation to ban White House officials from ever lobbying for foreign governments

· Legislation to ban foreign lobbyists from raising money for U.S. elections

· Legislation to require labor and environmental conditions be built into future trade deals

· Legislation to end the carried interest deduction

· Legislation to expand vocational and technical education and to reduce college costs

· Legislation to create a framework to rebuild U.S. infrastructure through both public investment and public-private partnerships

· Legislation to accelerate drug approvals at the FDA

· Legislation to reduce the costs of child care and eldercare

· Legislation to increase resources for communities dealing with gang violence

· Legislation to improve medical care for veterans

· Legislation to tighten up ethics rules that limit the influence of special interests

This hypothetical Democratic Dozen is drawn entirely from Trump’s promises, and I’m guessing the Freedom Caucus would want none of it. Democrats can slow the pace of dismemberment simply by negotiating with Trump on his very own wish list and watching Republicans have at it.

A good deal of apprehension exists, of course, with regard to Obama initiatives that Trump can reverse without the passage of new laws. Trump has promised to “cancel every unconstitutional executive action, memorandum and order issued by President Obama.” That literally is an empty set given that Obama has issued no such unconstitutional orders. In fact, the most controversial orders were not even issued by President Obama.

For example, what are often called the “Obama executive orders” on immigration are actually so-called guidance directives issued to the Department of Homeland Security by Secretaries Janet Napolitano and Jeh Johnson. With Secretary Johnson’s departure, it is no doubt true that Trump can insure in short order the cancellation of the program called, “Deferred Action for Childhood Arrivals,” or DACA. That’s because the program exists under a guidance memo that Secretary Napolitano issued, which did not require an elaborate formal process to promulgate and, thus, not to rescind. (Another program of deferred action for the undocumented parents of American citizens is already in litigation limbo, and can perhaps be canceled with even less political blowback because it has never been fully implemented.) The only costs here would be political. DACA has majority public support in the polls.

Similar ease of repeal, however, does not apply to many other “executive actions” that make conservatives unhappy. Some have suggested that Trump would wish to undo the initiative to extend the Family Medical Leave Act to same-sex couples. That initiative, however, is a final regulation issued by the Department of Labor following a process of public notice and comment opportunity required by statute. Rescinding, or even amending, any such regulation would require another such process, and the rescission would be subject to review by the courts. Undoing progressive regulation through conservative deregulation is a time-consuming legal process, not a by-my-signature presidential option. Congress could void existing regulations by statute, but executive branch efforts could be tested in court for constitutionality, procedural regularity, and simple arbitrariness. Getting through this maze in a year for any major rule would be a triumph of efficiency.

(An interesting sidelight here is that presidents since Reagan have also required significant agency regulations to undergo cost-benefit analysis under the supervision of the Office of Management and Budget. It will be interesting to see if Congress or Trump tries to deregulate without the performance of any such analysis.)

So my message to Democrats is, “Be wary, be vigilant, but also be prepared.” A lot of the fear of Trump is based on the apprehension that the ordinary norms and widespread public value commitments characteristic of every modern predecessor won’t constrain him. As I wrote in 2009, the rule of law requires that “the written documents of law . . . be buttressed by a set of norms, conventional expectations, and routine behaviors that lead officials to behave as if they are accountable to the public interest and to legitimate sources of legal and political authority even when the written rules are ambiguous and even when they could probably get away with merely self-serving behavior.” This vision looks pretty vaporous when applied to a guy who managed to become president by violating virtually every norm that previously applied to credible national politicians.

But Trump is going to be constrained by more than his shaky internal compass. Those who oppose him need to attend to firm up those constraints. Republicans took obstruction to an art form. Democrats can match their firmness with an actual majority of voters behind them.

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