Alex Brandon/AP Photo
And why his supporters should care about it
Shortly after the White House released the outlines of its tax proposal, President Donald Trump railed on Twitter against Democrats who opposed it, noting that his “Tax Cut and Reform Bill” was winning “great reviews.” Except that there wasn’t an actual tax cut and reform bill pending in Congress yet for Democrats to support or oppose. The legislation hadn’t been introduced. What the White House put forward was just a framework to be filled in during the normal bargaining process on Capitol Hill.
That was after the president tweeted that the “approval process” for his tax reform package would soon begin, which, again, is not how Congress works. The House of Representatives will introduce its own bill, incorporating some of the president’s priorities, to be sure, but there will be no formal process of approval for what he’s proposed. Some of his preferred policies might not make it into the final bill at all.
It’s possible the president knew all this, that his tweets were merely inelegant phrasing, and in any event we all can get the gist of what he meant. Then again, it’s also possible, and indeed there is ample evidence, that the president of the United States really doesn’t understand the constitutional process, or even American history, much at all. This is a man, after all, who at the age of 70 seemed surprised to learn that Abraham Lincoln was a Republican.
So here’s a weird question—weird since in our current political culture the answer is unknown: Does it matter whether or not the president of the United States understands how the Constitution that elected him works? Many Americans simply don’t seem to care about that question—which I suppose says a great deal about how much we expect from presidents these days. Or, conversely, how much faith our country has lost in any of our leaders that the bar has fallen so low.
Actually it really should matter to Trump’s supporters that their champion does not seem to understand how the constitutional process works—if, that is, they actually want to accomplish any of their stated goals. For anyone who still cares about such petty matters as separation of powers and representative democracy, it might be instructive to see just how far our country’s chief executive is from understanding them.
First, there’s the issue of his own election and why he won it. A few years ago, private citizen Donald Trump attacked the Electoral College, a system that has been in place since the nation’s founding to ensure a voice was given to smaller, less-populated states, as “a disaster for a democracy.” Of course, had this “disaster” been abolished by the time of the 2016 election, Hillary Clinton would be president of the United States today.
Shortly after he lost the popular vote to Clinton, and quite unsurprisingly, Trump became a booster of the very same Electoral College, calling it “actually genius,” and claiming falsely to have won the largest Electoral College landslide since Ronald Reagan. Feeling sensitive about his rather sizable loss of the popular vote, Trump went on to Twitter-boast: “If the election were based on total popular vote I would have campaigned in N.Y. Florida and California and won even bigger and more easily.”
This is also a total misunderstanding of the system. And almost certainly untrue. Trump did campaign vigorously in Florida, visiting it more than any other state, and barely won the popular vote there. Running hard in New York and California, both states where Trump is uniquely unpopular, likely would not have helped his popular vote total much, and in fact might well have taken crucial time away from states where he did win, such as Wisconsin and Michigan. If he truly understood how the Electoral College worked, and what it was intended to do, which he apparently doesn’t, the president could have made a much smarter argument about his victory: that he in fact won the popular vote in more states (30) than Hillary Clinton did (20).
Why this should matter to Trump supporters? Because if Trump doesn’t understand how he won in 2016, how will he figure out how to win in 2020?
Second, there’s the matter of the legislative process, another feature of our Constitution that is supposedly revered by the conservatives who voted for Trump. A few months ago, Trump attacked that process as “an archaic system” with “archaic rules.” What irked the president is the fact that he can’t seem to pass legislation through a Republican-controlled House and Senate. And in fact he has the worst legislative record of any president during his first 100 days since Franklin D. Roosevelt. But that’s not the fault of the Constitution; that’s the fault of a poor legislative strategy.
The president’s proposed solutions to these failures are, to say the least, highly problematic. One solution, he has mused, is to eliminate the filibuster rules of the Senate requiring 60 votes to move forward on considering various pieces of legislation. “The Senate must go to a 51 vote majority instead of current 60 votes. Even parts of full Repeal need 60. 8 Dems control Senate. Crazy!” Trump tweeted after Obamacare repeal failed to pass the Senate. But lifting the filibuster rule would not have helped pass Obamacare repeal, since the measure did not have the support of even 50 members of the Senate. Additionally, the filibuster has been in place for a good reason—to protect the rights and interests of the minority in the Senate. In fact, the filibuster has been relied on and deployed many times to stop what conservatives saw as liberal excesses when the Democrats controlled the Senate. Without the filibuster in place, gun control measures—anathema to Trump’s base—as well as immigration reforms that Trump supporters label “amnesty” would almost certainly have become law during the Obama administration when Democrats were in charge of Congress. Somewhat less understood, the legislative filibuster also protects vulnerable swing-state senators from tough votes that would put their seats in jeopardy.
Trump’s other legislative fix is, arguably, even less well-considered: systematically attacking the very Republicans he needs to get legislation passed. Rarely, for example, has a sitting president so audaciously and publicly demeaned and humiliated the powerful majority leader of the Senate as Trump routinely has Mitch McConnell. So far, McConnell is far more likely to be on the receiving end of a presidential broadside than, say, Chuck Schumer. Nor is there a notable history of success for presidents to pass legislation by threatening to oust the key swing votes in Congress needed to get something done—as Trump has appeared to do with Republican senators such as Arizona’s Jeff Flake.
Why does any of this matter? Trump’s misunderstanding of the legislative process and how things are done imperils all of his supporters’ priorities—the wall, tax cuts, tougher trade policies, tougher immigration bills and so on.
Third, there’s Trump’s misunderstanding of the judicial process. The president won widespread scorn when he accused a judge of being biased because of his Mexican heritage. This, apparently, was an attempt to intimidate the judge to rule in a way that demonstrates a lack of bias, but almost certainly such a tactic, if it had any impact, would have the opposite effect: a judge showing his independence from executive pressure by ruling firmly against him. (On a side note, the president’s appointment of strict constructionists to the federal courts will almost certainly serve in checking his activist impulses. He doesn’t seem to realize that either, which in this case, at least, is a good thing for conservatives.)
Trump swept into office opining about the need to change libel laws to make it easier to sue the “fake news” media. His chief of staff acknowledged in an interview on ABC at the time, “I think it’s something that we’ve looked at. How that gets executed or whether that goes anywhere is a different story.” More recently, the president vented, “Why Isn’t the Senate Intel Committee looking into the Fake News Networks in OUR country to see why so much of our news is just made up-FAKE!” This is not how the system works: Libel laws are a matter for the states, and congressional committees are not in the business of investigating the news media for doing their job. There’s plenty of bias in the mainstream press, but it’s hard to take Trump’s cries of #FAKENEWS seriously when—to take just one recent example—he’s said to be privately raging over reports that his own secretary of state called him a “moron” while publicly dismissing those reports as false. Even more foolish, his cries for action against outlets reporting what turns out to be inaccurate information could just as easily be used against the news outlets he likes.
Indeed, making it easier for Trump to sue or intimidate media outlets he doesn’t like would also make it easier for another president—say, Barack Obama—to do the same with conservative outlets. We conservatives have long venerated the First Amendment, so it matters that a Republican president would rather cavalierly put it into jeopardy.
It should matter, that is, but it probably doesn’t.