FIVE POINTS: The Art of the Steel
1. Most presidential authority is statutory, not constitutional. Many people are quite upset about the tariffs announced by the president yesterday, which will put 25% taxes on imported steel an 10% taxes on imported aluminum. No one likes tariffs except the narrow interests they protect. Economists hate them. Consumers will hate them. And most importantly, many elected Republicans hate them. Over 100 Republican House members signed on to a letter to voice their displeasure, and Speaker Ryan submitted his strong objection to the policy:
"I disagree with this action and fear its unintended consequences. I am pleased that the president has listened to those who share my concerns and included an exemption for some American allies, but it should go further. We will continue to urge the administration to narrow this policy so that it is focused only on those countries and practices that violate trade law. There are unquestionably bad trade practices by nations like China, but the better approach is targeted enforcement against those practices. Our economy and our national security are strengthened by fostering free trade with our allies and promoting the rule of law."
The problem with Ryan's statement, of course, is that the president doesn't have inherent constitutional authority to adjust tariffs on foreign commerce. That's an enumerated power of Congress.The only reason the president has the authority to adjust tariffs is because Congress passed a law specifically delegating him that power. An they can also reclaim it at any time. In fact, Senator Flake has introduced legislation to do just that: stop the Trump tariffs in their tracks by overriding them with a new law. And this is why Ryan's statement seems so hollow: he opposes the tariffs, but conveniently doesn't mention that he's the leader of the branch of government with authority to alter them.
It's also the case that this is true of most presidential authority. Article II of the Constitution is pretty thin. Aside from his war powers, appointment powers, and the veto, there just isn't much specific formal authority there for the president; most of it is vague nods to executive power, which isn't nothing of course, but generally functions as discretion in the implementation of congressional law. Beyond that inherent discretion in governance, authority to make policy decisions generally comes from statutory grants of power from Congress. And Congress, quite reasonably, has provided the executive branch with all sorts of formal delegated authority, over trade, immigration, health care, transportation, and any number of other areas.
Of course, Congress can't simply repeal these powers once granted; as it turns out, presidents will tend to veto attempts to reduce presidential statutory authority. I call this the "ratcheting-up" problem; Congress can provide the president with power by majority vote, but needs a supermajority to take it away. And that lessens their bargaining position in situations like the Trump tariffs; it's pretty clear there's a congressional majority against these tariffs, but it's not clear if there is a 2/3 supermajority require to override a veto. Informal political pressure has gotten Trump to water-down the tariffs significantly. Whether there will be a push to totally kill them, in part, is a function of the ratcheting-up math. The alternative move is to put the tariff changes in the omnibus, and dare the president to shut down the government if they only have a majority an not a veto-proof supermajority.
One solution to this general problem is for Congress to sunset grants of power to the president. By putting expiration dates on statutory grants of power, they avoid the ratcheting-up problem. If they want to the power to continue, they simply re-up it by majority vote. If they don't want it to continue, they do nothing. This gives Congress the leverage in negotiations; the president must bargain to continue the power. Two examples come to mind: TARP, which was sunset, and the AUMF for the war on global terror, which was not. The former expired; it's not clear if the latter ever will. It can also be thought of like annual appropriations (which the president must beg for each year) vs. mandatory expenditures (like social security), which are permanent an thus don't require regular congressional action.
There's a surprising lack of good writing about this dynamic. Everyone involved in the practice and study of presidential-congressional relations understands it, but almost no one has written about it. Josh Chafetz has a nice discussion of it in his magisterial book, Congress's Constitution, but beyond that there is not very much.
2. The White House is a Mess, Part XLVII. I wrote an op-ed last week discussing President Trump's weakness in running the White House and influencing the executive branch, and a subsequent tweetstorm. Since then, even more has descended on the White House: Gary Cohn is resigning, Jared Kushner's troubles are escalating, and there's a new chapter unfolding in the the president's scandal with an adult film actress The tariff policy was developed and rolled-out despite significant opposition from within the White House, in the executive branch, and on Capitol Hill. And now here comes a foreign policy moonshot: bilateral top-level talks with North Korea.
I am mostly ignorant of international relations and diplomacy, so I'll limit my comments to the policy process that produced the announcement of a summit. Three points:
First, no one knew! No one on the Hill knew this was coming. No one at the State Department knew this was coming. The White House itself didn't have a statement prepared immediately after the South Korean contingent announced the agreement. That's insane. You can have a reasonable debate over whether this is a good idea or not, but I'm quite certain that centralizing this sort of decision-making so tightly in the White House that no one on the outside is participating in the strategizing is less than ideal.
Second, this all reminds me of the travel ban. You put a policy together at the White House, without input from the area experts, without consulting anyone in Congress, without gathering support in the executive branch, and it comes out exactly like you would expect: shoddy, undercooked, not thoughtout, and sub-optimal. There are many North Korea experts at State; not using them is wasting valuable resources. Maybe the president and his close advisers have carefully thought about this for months. But it appears rather slap-dash. That can't be good. Will the White House ever learn? I'm not holding my breath.
Third, this seems like a classic presidential turn. Historically, presidents have sought to focus on foreign policy when their domestic agenda runs dry of possibilities. Sometimes people think of it as a second-term sort of thing for a president, when he's heading toward lame-duck status and lost the juice to influence major legislative priorities. So it doesn't inherently surprise me that this is happening now---the next year or so looks pretty quiet on the major White House domestic policy priorities.
So I'm certainly skeptical of the process that has led to these talks. That said, the president has seemingly made the decision to go forward with it, and so I wish him well. Attempting diplomacy sure beats war brinksmanship, and even if the president gets his lunch handed to him in these negotiations, the negative consequences of that seem like cheap insurance compared to war.
3. The 2018 election is here, right now. Everyone knows that election-year congressional politics is different than politics in the off-years. Majority congressional parties shape the agenda in Congress to highlight election issue policy differences, minority parties seek to pin the majority to tough amendment votes that can be used as campaign talking points, and individual members become hyper-sensitive to having to take tough votes, and look to their leaderships to protect them from such votes. And so the GOP probably won't do a budget resolution this spring, and it's highly doubtful conservatives will want to vote on FY2019 spending bills in the early fall before the November election.
But it's worth remembering that for many members, the most scary election they may face are primary elections, which started this week in Texas and will continue throughout the spring and summer across the country. For all the talk of polarization, gerrymandering, and sorting creating safe districts, that's almost totally in reference to the general election. The safer your district in the general, the more likely it becomes that you could have a tough primary election from a well-funded (or just well-organized) challenger on your extreme flank. Preventing such a challenge outright (like Rep. Budd magically did in NC-13) is a huge political victory; surviving one is often the tough part of the election cycle.
As such, many of the toughest votes---and most dangerous time for a tough vote---won't occur in the Fall, but instead will be happening now. The upcoming omnibus includes a huge increase in discretionary spending and will also be chock-full of policy riders that may range from Planned Parenthood to medical marijuana, to say nothing of tariffs, guns, DACA, or a border wall. For many members, it may become a very tough vote. I don't expect the Republicans in the House to be able to muster the 170 they had for the last CR/BCA cap deal, nevermind a majority. And that means increased leverage, once again, for the House Democrats.
4. Leadership turnover in the House is very likely. This week, minority leader Pelosi donated her Speaker's gavel to the Smithsonian. While this obviously doesn't preclude her from being Speaker in 2019 if the Democrats take control of the House, it sure seemed like quite the symbolic event. I've wrongly bet against Pelosi many times---I thought for sure she was going to step down in 2010---but I really think this is the end of the line for her this year. Certainly if the Democrats don't take control of the House. And more likely than not even if they do. The entire leadership is old---Pelosi, Hoyer, and Clyburn are all in their late 70s. They stayed on long enough to see two of the potential rising stars---Chris Van Hollen and Xavier Beccera---leave the chamber for other opportunities. And now there are younger potential leaders growing more and more restless to enter the ranks.
The situation on the GOP side is different, but I also see Ryan leaving. There'd be absolutely no reason for him to stick around in the minority if they lose the election, especially if he still has hopes of eventually running for president. And if they hold onto the chamber, he will find it more ungovernable than ever, with a smaller caucus that has lost many moderates but few members of the House Freedom Caucus. It's likely Ryan never wanted this job in the first place; it's hard to see why he'd stick with it in basically impossible circumstances. I would expect him to win his election, declare he's not running for leadership, and exit Congress outright sometime in the spring.
5. Reminder: We have a podcast! This week we talked tariffs, the omnibus, and 2016. You can listen to the episode here. You can subscribe on iTunes here. And our RSS feed is here.
See you next time (probably end of next week). Thanks for reading!