Understanding a New Presidency in the Age of Trump. Joseph A. Pika
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Presidency
As noted by Pfiffner, presidents often seek to move quickly in the legislative sphere, hoping to take advantage of a honeymoon period in which members of Congress are deferential to the presumed mandate achieved by the president in the election just past. The Trump “contract” listed ten bills (as well as an additional constitutional amendment to impose term limits on members of Congress) to be introduced in the first hundred days of his administration. These included measures to repeal and replace the Affordable Care Act, raise tariffs, crack down on illegal immigration, lower taxes, and “clean up corruption.” However, the contract had little in the way of policy details, and the president’s first address before a joint session of Congress on February 28, 2017—well received but long on generalities and short on specific measures—did little to clarify his agenda. The competing agendas of the different power centers in what would prove to be an exceptionally chaotic White House made it even more difficult to rank presidential priorities.50
Photo 5 An activist in New York City holds a sign protesting the repeal and replacement of the Affordable Care Act (ACA), also known as “Obamacare.” Trump had promised reform of the ACA during his campaign; but its proposed replacements have faced a rocky road in Congress and in the court of public opinion.
Albin Lohr-Jones/Pacific Press/LightRocket via Getty Images
Trump chose Marc Short (who had previously served as a legislative aide to Mike Pence and as president of the Koch Brothers’ political fund Freedom Partners) to be his Director of Legislative Affairs in the White House, but the president’s impetuous style and the lack of clarity as to who was in charge made life difficult for Short and his office (itself not fully staffed until March 22).51 Trump did have one clear early legislative victory: the confirmation of Supreme Court Justice Neil Gorsuch to fill the seat vacated by the death of Antonin Scalia on February 13, 2016. According to Article II, Section 2 of the U.S. Constitution, the power to appoint justices to the Supreme Court is shared between the executive and legislative branches; the president nominates individuals to serve on the Court, but those nominations are subject to the “Advice and Consent of the Senate.” In other words, the Senate has the power to confirm or reject nominees.
After the Senate confirmed Gorsuch by a 54–45 vote on April 7, 2017, Trump bragged (correctly) that he was the first president to fill an open Supreme Court seat in the first hundred days since Chester A. Arthur in 1881. However, Trump neglected to note that it is highly unusual for a president to take office with a vacancy on the Court; the vacancy existed only because Republicans had taken the extraordinary step of refusing even to consider Barack Obama’s nominee to fill the seat.52 In fact, filling a vacancy within any hundred-day period—even the first—is not a particularly significant feat, comparatively speaking. Prior to Gorsuch, whose confirmation process took 66 days in all, the average length of time required to confirm, reject, or withdraw a Supreme Court nominee was a mere 25 days. Only two successful nominees in the entire twentieth century took longer than 100 days to be confirmed: Woodrow Wilson’s nomination of Louis Brandeis in 1916 (125 days) and Dwight Eisenhower’s nomination of Potter Stewart in 1959 (108 days, although Stewart already sat on the Court by way of a “recess appointment”).53
The confirmation of Gorsuch also required a controversial Senate rules change. Although Democrats had eliminated the filibuster as a tool to block both lower federal court and executive branch appointments when they controlled the Senate in 2013, they left in place the opportunity to filibuster Supreme Court nominees.54 When employed, the filibuster would require sixty votes (rather than a simple majority of fifty-one) to confirm—a threshold that Gorsuch could not reach. Thus, the 2017 Republicans followed the Democrats’ lead and took away the opportunity to use filibusters against Supreme Court nominees.55 This ensured Gorsuch’s confirmation and eased the way for future nominees (see Section IV). Trump later urged the Senate to abolish the filibuster altogether so that his legislative agenda could advance more easily, but that idea had little initial support among lawmakers.56
Despite his victory in securing the Gorsuch confirmation, and despite having the luxury of Republican control of both houses of Congress, President Trump did not secure passage of any of the ten bills he had promised in his contract to enact during the first hundred days. The contract’s proposed constitutional amendment to impose term limits did not gain any traction either; Senate Majority Leader Mitch McConnell rejected the idea out of hand before Trump even took office, while House Speaker Paul Ryan offered tepid support for the concept but took no action on the proposal. Indeed, of the ten bills promised in the contract, only the health care repeal-and-replace measure was even introduced within one hundred days.
Health care reform served as a useful indicator of the difficulty the new administration’s agenda faced. In October 2016, then-candidate Trump had promised that fixing the health care system was “going to be so easy.” Since the passage of the Affordable Care Act in 2010, House Republicans had voted more than sixty times to repeal it, in part or in whole.57 Only a Democratic Senate and, after the 2014 midterm elections, President Obama’s veto pen, had kept the law in place.
Now, however, Republicans controlled House, Senate, and White House, and new President Trump had repeatedly called for the repeal of “Obamacare,” which he termed a “disaster.” “Everything is broken about it,” he insisted. “Everything.”58 Obamacare seemed doomed.
But a funny thing happened on the way to repeal: Americans began to rally around some of the law’s basic tenets. Though not widely loved (even its advocates argued for revision), the Affordable Care Act nonetheless had many specific provisions that proved very popular, such as the requirement that insurers cover individuals even if they had pre-existing medical conditions. On the campaign trail, Trump had seemingly embraced those provisions, and declared that as president he would replace Obamacare with “something terrific”; indeed, he told the Washington Post the week before his inauguration that “we’re going to have insurance for everybody. There was a philosophy in some circles that if you can’t pay for it, you don’t get it. That’s not going to happen with us.” He added that the new plan would provide “great health care…. Much less expensive and much better.”59
As president, Trump did not back up those promises for “something terrific” with a specific legislative proposal. Meanwhile, Republicans in Congress ran headlong into deep divisions within their own caucus about how to proceed on the issue. While many, including Trump, took the stand (at least early in 2017) that Obamacare had to be repealed and replaced, others thought repeal sufficient. The conservative House Freedom Caucus wanted to deregulate the insurance marketplace and slash federal spending on health care; the more moderate Tuesday Group of representatives preferred providing tax credits to offset insurance costs and worried about rolling back coverage, including the expansion of Medicaid that Obamacare had funded (money on which more than thirty states now depended). To avoid having to win over votes from Democrats in the Senate, the Republicans sought to use a process called “reconciliation,” which prevented legislation from being filibustered in the Senate but could only be used to change provisions that had a monetary impact (meaning that most regulatory change could not be passed in this manner). But even getting support from fifty-one Republican senators would be a hard sell given a party caucus that ranged from Ted Cruz of Texas on the far right to the more purple Susan Collins of Maine.
On March 6, Speaker Ryan unveiled the American Health Care Act (AHCA), a bill crafted by the House Republican leadership and quickly shepherded through committee, even before the