Checks and Balances

The American presidency is a paradox. It is the most noted position in the world, imbued by observers with all the power inherent to the world’s most powerful country. [..] At the same time, the American president is among the weakest institutional leaders in Euro-American civilization. He can do some things unilaterally, particularly in foreign policy, but Congress can block them. He can do some things by executive order, but the Supreme Court can overrule them. He can pass certain programs that require cooperation from states, but the states can refuse to cooperate. At every step, as the founders intended, his ability to act unilaterally is severely limited. The difference between how presidential power appears and how it is applied in reality is enormous.

So now, the most important question is not, what does Trump intend to do… but instead, what will Congress do? Both chambers have Republican majorities. Republican control of the House of Representatives is overwhelming. Republican control of the Senate, though, is not.

The Senate has 52 Republicans, 46 Democrats, and two independents who are likely to vote with the Democrats. This essentially gives the Republicans a four-vote majority. Because the vice president would be the deciding vote in a tie… and because he is a Republican, three Republicans would have to switch sides to defeat any legislation.

Under the Constitution, senators are not elected to rubber-stamp the president. They are elected to represent their sovereign states. So this battleground will not be between Republicans and Democrats. Nor will it be between both chambers. The real battle will be among Senate Republicans.

Three defections make it impossible to pass any proposed legislation. As such, any Republican senator who can position himself as a potential defector will be able to negotiate for the president’s support on any number of issues. The president will either be forced to compromise or risk having the legislation defeated.

Approval Ratings Are Key

Senators are not free actors. They need to be re-elected. Their calculation on whether to oppose a Republican president will depend heavily (if not entirely) on whether the president will help or hurt them in their re-election bids. That depends on the president’s approval ratings, particularly in the senators’ home states.

According to a Fox News poll taken just before Inauguration Day, 37% of those polled approved of Trump’s performance and 54% did not. And therein lies Trump’s problem and battleground.

President George W. Bush, President Richard Nixon, President Lyndon B. Johnson, and President Harry S. Truman all had approval ratings around 37% toward the endof their terms. This number is normal for a failed or worn-out presidency.

I know of no president in the 20th century who began his term this way. Each party historically commands about 40% support among voters. When a president falls below 40%, he is actually losing support from his own party. It is normally hard to come back from that… and it usually takes years to get to that low level.

This poses a problem for Trump’s administration. With these numbers, it is possible that more than three Republican senators could decide that rigid support for the president might cost them their political lives.

Trump’s approval ratings are unlikely to fall below 37%, but to be effective, he can’t stay at that level. Republican senators will look at the president’s negative ratings in their states and calculate whether supporting his programs might lock 50% of voters against them. It is important to recall that constitutionally, a senator is supposed to serve the people of his state, not the president.

Because public support wanes over the course of a presidency (though it sometimes blooms with nostalgia later in his term), it is essential to start a term with as much support as possible. Therefore, if Trump wants to get controversial bills passed, he must build his popularity quickly. His staff, particularly the vice president, will be examining every Republican senator who is up for re-election in 2018 to determine how to help sway their states’ voters. Trump’s fear will be that he will alienate his core while failing to make inroads with his enemies.

The Other Roadblock

The final point to consider is, of course, the use of filibusters. This is a deep tradition in the Senate, and it has served as another check on power that the founders would have been proud of. Any senator may filibuster a bill, and if a whole party does it, the filibuster can only be stopped by getting 60 votes in favor or by letting the senators go on until they drop.

If the latter happens, the Democrats in the Senate would effectively be able to block Trump’s entire agenda. Alternatively, Trump would need the support of eight Democrats to get 60 votes to end a filibuster. That isn’t likely to happen.

The president can achieve some things with an executive order, assuming the Supreme Court doesn’t step in. But broader policies like infrastructure development won’t get passed without congressional support.

That battleground will be within the Republican Party in the Senate. The result will depend on whether Trump’s approval ratings increase above 37%. Just holding there won’t do it, as that number has been “Death Valley” for other presidencies… although we have no way to benchmark a presidency that starts at this level.