Trump Keeps Passing the Buck to Congress
On Obamacare subsidies, the Iran deal, and DACA, the president has taken unprecedented steps to hand executive authority back to lawmakers.
Bill Clinton fought Congress tooth and nail, from shutdowns to impeachment. George W. Bush boasted that he was “the decider.” Barack Obama groused that if lawmakers were unwilling to take actions he wanted, he would take up his “pen and phone.”
Donald Trump, however, is more than willing to let Congress act. Of all the norms that he has upended in his short tenure as president, Trump’s willingness to pass the buck back to lawmakers is one of the most unexpected, curious, and perhaps salubrious. This impulse was on display in two major moves this week, on health care and the Iran deal, and this week the White House also laid out its principles on a third—how to deal with so-called Dreamers. In each of these cases, the Trump administration seems to be shifting responsibility to Congress so that the president is freed of it, while also hoping or expecting lawmakers will act to preserve the status quo.
In each of these cases, Trump is also taking a power that Obama specifically claimed for the presidency and insisting that Congress take it instead. Take the health-care issue. As my colleague Olga Khazan reports, Trump has decided to cut $7 billion in cost-sharing-reduction subsidies—basically, payments to insurers that make it worth their while to offer plans on the Obamacare marketplaces. If the CSRs aren’t replaced, insurers may jack premiums up or withdraw from the exchanges altogether. Either of those could destroy the insurance marketplaces and produce millions more uninsured Americans. By reversing course, the administration is also jolting insurers, who complain that they need to have a stable, consistent environment to do business.
There’s an arguable constitutional rationale for Trump’s action. House Republicans sued the Obama administration over the CSRs, insisting that they were not specifically provided for under the law, and therefore were an unconstitutional appropriation and that Congress must be involved. Courts haven’t decided that question yet. But it’s hard to take at face value the White House’s solemn invocations of respect for the separation of powers, given, for example, the president’s attacks on the judicial system for striking down his travel ban.
Trump hates Obamacare, but he is also a politician, and he realizes that no matter how many times he says the law is either Obama’s or Democrats’ fault, it will look bad for him if millions of Americans lose insurance on his watch. Trump is taking a gamble by killing the CSRs: He’s assuming that if he kills them, members of Congress will take action to either replace them or else rework the health-care system more comprehensively. Trump doesn’t really want the health-care system to collapse—there’s no indication he fully understands how it works—but he wants to be able to keep his promise of gutting Obamacare. Forcing Congress to clean up the mess achieves what Trump wants.
The same is true when it comes to the Iran deal. Trump is expected to announce Friday afternoon that he will decertify the agreement, which prevents Iran from building nuclear weapons. A law passed in 2015 requires the president to sign off on the deal every 90 days, saying that Iran is in compliance and that the deal is good for American national security. Twice already, Trump has certified the deal, and there’s no evidence that Iran is not in compliance.
The problem is that candidate Trump promised to shred the agreement. He is irked by news stories cheekily pointing out that he has twice certified it, and he’s irked by just having to deal with it every three months. Yet many of Trump’s top advisers think the deal is important, including Iran hawks like Secretary of Defense James Mattis, who said last week that it’s in U.S. national-security interests, and Secretary of State Rex Tillerson. Chief of Staff John Kelly and National-Security Adviser H.R. McMaster also seem to think the deal’s benefits outweigh its weaknesses.
Decertification offers a nifty escape hatch for Trump: He can decertify the agreement and then bounce it to Congress, which very well might decide to leave it in place—even fierce critic Representative Ed Royce said this week the United States should remain in the deal—while washing his hands of the matter.
Finally, there’s the Deferred Action for Childhood Arrivals program, the Obama-era order known as DACA that allowed unauthorized immigrants brought to the United States as children to stay in the country under certain conditions. Trump promised during the campaign to immediately cancel the program, but once in office he began to soften. Finally, in September, he announced that he was going to phase it out—but he has repeatedly encouraged lawmakers to pass their own law to achieve the same ends as DACA, and has implied that if they don’t, he will: “Congress now has 6 months to legalize DACA (something the Obama Administration was unable to do). If they can’t, I will revisit this issue!” Senator James Lankford, an Oklahoma Republican, just told The Washington Post that Trump was willing to extend the deadline.
In August, James Hohmann wrote in the Post that congressional misgivings about Trump might lead Congress to demand back authority it has yielded to presidents over the course of several decades. As Hohmann noted, a congressional bill imposing sanctions on Russia (as well as Iran and North Korea) represented a fresh assertion of congressional power. But it turns out that even without Congress demanding it, the Trump administration is yielding powers back.
From the perspective of separation of powers, this may well be a good thing, even if every indication is that Trump’s intention in taking these moves is to shift responsibility and blame to Congress, not strengthen the Constitution. (After all, he has also spent this week complaining about First Amendment protections.) Indeed, as we have seen, in each one of these cases, Trump seems to be seeking political absolution while maintaining the status quo. Presidents have often run against Congress, but seldom has a president sought to hang so many of his own burdens on a Congress controlled entirely by his own party.
The political problem in all of this, and the danger—for Trump; for people on the insurance exchanges; for Dreamers; for U.S. national security—is that Congress won’t act. No one has been more strident in criticizing legislators for failing to repeal and replace Obamacare than Trump has, and yet he’s now placing a big bet on the same body to handle not just one but three explosive, divisive issues.
What’s hard to tell is whether this is naive or disingenuous. An interview with Commerce Secretary Wilbur Ross on Thursday indicates that for at least some members of the administration, it’s the latter. Ross had no illusions, telling Newsmax: “It’s the Congress. That’s where the flaw comes. You can do whatever you want in the administration. Congress is much more about process than about results.” Trump has also bridled against the Washington process, complaining that things were much easier when he was a businessman and could act without dealing with coequal branches. On DACA, the White House has laid out a set of demands that make it almost certain Congress cannot succeed.
Still, the fact is that whatever his motives, Trump has entrusted Congress with control over several major policies, each of which could have major ramifications for the nation and his presidency. The president who once promised “I alone can fix it” has decided he’d just as soon let someone else fix it, or take the political heat if they can’t.