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Post-2016 scenarios: What will the federal government look like?
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 Date: November 8, 2016 |
Winner: Donald Trump (R) Hillary Clinton (D) • Jill Stein (G) • Gary Johnson (L) • Vice presidential candidates |
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November 8, 2016
This article followed the election cycle. For more information on policy under the Trump administration, please see: Policy issues under the Trump administration, 2017-2021.
Once the dust settles from what turned out to be a raucous 2016 election cycle, what will Congress and the president be able to get done? The answer to that depends on who wins the presidency and whether control of the Senate changes. Democrats needed to win five seats to take over the Senate majority. They could also have taken control with four seats if they had won the White House—with the Democratic vice president, in his or her role as president of the Senate, being the majority-maker.[1]
The House remained safely in Republican hands in the 2016 election cycle. Democrats needed to win 30 seats on Election Day, a difficult feat to pull off barring a worst-case scenario for the GOP.[2]
Regarding what could be accomplished, a Republican president would likely work more cooperatively with a Republican-led House and Senate to, for example, repeal Obamacare. And a Democratic president would be unlikely to do so, as was demonstrated on January 8, 2016, when President Obama vetoed a bill passed by the Republican House and Senate to repeal the healthcare law.[3]
Other issues that hung in the balance include the makeup of the Supreme Court; the president's executive actions on immigration, guns, and climate change; and the fate of other laws such as the Dodd-Frank Wall Street regulations law.
Due to the comments by Republican members of the United States Senate, Ballotpedia is working under the assumption that Merrick Garland will not be confirmed before the new Congress and president are sworn-in.
Scenario 1: Republican president, Republican House and Republican Senate
If Republicans were to win the presidency and maintain control of the House and Senate, most of President Obama’s signature efforts would be faced with the threat of repeal. Republicans would also have the opportunity to maintain the balance of the Supreme Court should an open seat—following the sudden death of Antonin Scalia—not be filled under Obama, as congressional Republican and GOP presidential candidates have called for.[4]
Supreme Court and judiciary
With the unexpected death of Scalia, the GOP would have the opportunity to choose a nominee to fill Scalia’s seat and keep the balance of the court intact if Merrick Garland does not get confirmed. Prior to Scalia’s passing, five justices on the court had been nominated by Republican presidents and made up a voting bloc whose legal deliberations were most often in line with conservative thinking. The four remaining justices were nominated by Democratic presidents and made up the more progressive wing of the court. A Republican president would likely seek to replace Scalia with a similar judge in order to preserve the balance of the court.[5] The next president might have the opportunity to make an additional Supreme Court appointment while in office as well, further affecting the political balance on the court.[6] As of November 2016, there were three justices over the age of 75.[7][8]
A Republican president would also have the ability to nominate more conservative judges to vacancies on lower courts. Those judges would make rulings that have broad repercussions throughout society by setting precedents that guide future courts. These appointments last for the life of the judge, enduring beyond a president’s tenure and effectively extending his or her legacy.[9]
Senate rules
There could be more pressure to use the nuclear option to change Senate procedures and eliminate the filibuster for Supreme Court nominations and legislation. Under the current rules, legislation can be filibustered, and 60 votes are required to bring the filibuster to a halt. The rationale behind the rule is that it helps promote bipartisanship, since it is rare to have 60 senators from the same party in the chamber at any one given time. But in practice, the hurdle has made it difficult to get legislation through the chamber because the minority has this tool to block legislation.[10][11]
The nuclear option is a way to change the Senate process with a simple majority vote. Typically, changing Senate rules takes a supermajority. The Democrats used the procedural move in 2013 and got rid of the filibuster for all nominations except for potential Supreme Court justices.[12] Ever since then, there has been pressure from some to go further. That pressure could grow under a Republican president.[13][14]
Obamacare
The Affordable Care Act was one of the top laws that Republican presidential candidates had said they want to repeal. “I am so against Obamacare. I've been saying it for two years in my speeches, I'm going to repeal and replace Obamacare,” Donald Trump said on ABC’s This Week on January 31, 2016.[15]
Congressional Republicans had begun exploring whether to use the budget process to expedite getting a repeal bill to the next president's desk. The budget reconciliation process would allow for a repeal bill to pass the Senate with just 51 votes—avoiding a filibuster, which, under Senate rules, requires 60 votes to overcome. The Republican-led Congress used the process to send Obama a repeal bill on January 6, 2016, and he vetoed the measure on January 8, 2016.[3]
Discussions had been ongoing about using the process again to get a similar measure to the next president. But the Senate GOP would need to get assurances from the parliamentarian on whether a budget resolution passed by Congress during one session would be in effect in the next session. Bills that do not become laws expire from one congressional session to the next and need to be reintroduced. But a congressional budget resolution is not a bill; it is never sent to the president for his signature. It is a blueprint of spending that locks in funding levels for the appropriations process. Congress typically tries to pass a budget resolution each year, and the question Republicans are looking to clarify with the parliamentarian is whether a resolution is in force from one session to the next. Failing that, the Republican-led Congress could pass another budget resolution after the next president takes office, but the repeal package would take longer to get to the president's desk.[16]
Dodd-Frank
Signed into law by President Obama in 2010 when the House and Senate were under Democratic control, Dodd-Frank was created to rein in Wall Street after the Great Recession of 2008. The law created several new agencies and regulations including the Financial Stability Oversight Council, which is designed to watch out for threats to financial stability; the Federal Insurance Office to monitor all aspects of the insurance sector; and the Consumer Financial Protection Bureau (CFPB), which is tasked with protecting consumers.[17]
Republican presidential nominee Donald Trump and GOP members of Congress have called for the law to be repealed and would likely move to do so under a Republican president.[18] GOP critics of Dodd-Frank believe that the law is an overreaction to the 2008 economic crisis and that the regulations stifle the nation's businesses and entrepreneurship.[19][20]
While running for Senate, Ted Cruz (R-Texas) wrote an op-ed in National Review on September 7, 2011, in which he proposed a repeal of the law as part of a plan to spur job growth. “Repeal Dodd-Frank. A law of massive complexity, Dodd-Frank does nothing to prevent future financial bailouts, but instead subjects the financial sector to costly new regulatory burdens — the cost of which invariably will be passed on to consumers. And its impact hits small community banks hardest. Reasonable government regulations are needed to protect the soundness and integrity of the marketplace, but they should not empower bureaucrats to micro-manage private sector institutions to the detriment of consumers.”[21]
Executive actions
With little overlap between President Obama's agenda and the Republican-led Congress, it was difficult to forge deals to pass significant legislation.[22] So to advance his agenda, the president issued a series of executive actions on issues including immigration, guns, and climate change. The effort was part Obama's "phone and pen" strategy, which was a concerted effort to use his executive powers when working with Congress was not possible.[23][24]
Republican presidential candidates and GOP members of Congress have criticized the president for what they believe is an overuse of his executive powers, which, they have argued, have resulted in a growing number of regulations that they have said threaten economic growth. These actions would be repealed under a Republican president.[25]
Immigration
The Deferred Action for Childhood Arrivals (DACA) is a program established by executive action on June 15, 2012, that allows undocumented individuals who were brought to the United States as children to receive relief from being deported for a period of time if they meet certain criteria. That action was followed by the Deferred Action for Parents of U.S. Citizens and Lawful Permanent Residents (DAPA), which was announced on November 20, 2014, shielding the undocumented parents of U.S. citizens and lawful permanent residents from deportation. Both programs would likely be repealed under a Republican president.[26]
Guns
President Obama has said that his inability to pass gun safety legislation to reduce gun violence has been one the bigger frustrations of his presidency.[27] On January 4, 2016, Obama unveiled executive actions to reduce gun violence, in part by broadening the definition of gun seller to ensure that more sales require background checks.[28]
Responding to reports that the action was coming, Donald Trump said he would roll back the action at a campaign event in Mississippi on January 2, 2016. "There's an assault on the Second Amendment. You know Obama's going to do an executive order and really knock the hell out of it," Trump said. "You know, the system's supposed to be you get the Democrats, you get the Republicans, and you make deals. He can't do that. He can't do that," he said. "So he's going to sign another executive order having to do with the Second Amendment, having to do with guns. I will veto. I will unsign that so fast."[29]
Equal pay
Obama announced an executive action on January 29, 2016, that would require companies with 100 or more employees to report pay data by gender, race and ethnicity.[30]
Clean power plan
The Environmental Protection Agency (EPA) released carbon emissions targets for each state based on its particular energy consumption. The proposal, known as the Clean Power Plan, also includes an incentive program for states to get a head start on meeting standards on early deployment of renewable energy and low-income energy efficiency.[31][32]
The EPA under a Republican president would likely reverse course on the proposal. Ted Cruz, prior to suspending his presidential campaign, released a press release on August 3, 2015, criticizing the plan. He said, "The President’s lawless and radical attempt to destabilize the Nation’s energy system is flatly unconstitutional and–unless it is invalidated by Congress, struck down by the courts, or rescinded by the next Administration–will cause Americans’ electricity costs to skyrocket at a time when we can least afford it. I urge leaders of both parties, including Democrats who represent communities that will be devastated by this reckless policy, to stand up against this Administration’s dangerous agenda of economic decline.”[33]
The Supreme Court blocked the plan on February 9, 2016. A group of 29 states and state agencies appealed to the court after the petition to block the plan was rejected by the District of Columbia Court of Appeals in January 2016. On February 9, 2016, the Supreme Court overturned the lower court's ruling and put the implementation of the plan on hold while a lower court hears arguments against the rule. A group of 60 utility and energy companies had also filed a stay against the rule.[34][35][36][37]
Scenario 2: Democratic president, Republican House and Republican Senate
Supreme Court and judiciary
A Democratic president would be able to fill Scalia's seat on the Supreme Court and change the court's political makeup. Prior to Scalia’s passing, five justices on the court had been nominated by Republican presidents and made up a voting bloc whose legal deliberations were most often in line with conservative thinking. The four remaining justices were nominated by Democratic presidents. A Democratic president would likely seek to replace Scalia with a more moderate judge in order to preserve the balance of the court.[5] The next president might have the opportunity to make an additional Supreme Court appointment while in office as well, further affecting the political balance on the court.[6] As of November 2016, there were three justices over the age of 75.[7][8]
Democratic presidential nominee Hillary Clinton and Democratic members of the Senate have urged Republicans to give Obama's nominee, Merrick Garland, a vote on the Senate floor.[38]
In a January 8, 2016, op-ed in The Boston Globe, Clinton said that as president, she would appoint justices to the Supreme Court who would "protect the constitutional principles of liberty and equality for all, regardless of race, gender, sexual orientation or political viewpoint; make sure the scales of justice aren’t tipped away from individuals toward corporations and special interests; and protect citizens’ right to vote, rather than billionaires’ right to buy elections." Clinton said that on "Election Day, three of the current justices will be over 80 years old, which is past the court’s average retirement age. The next president could easily appoint more than one justice. That makes this a make-or-break moment — for the court and our country." She added that Republicans have been vocal about packing the court with conservative justices. "After years of accusing liberals of judicial activism, conservatives are wholeheartedly relying on Republican-appointed judges to undo progressive achievements. They’re using radical legal strategies to accomplish through the courts what they’ve failed to do through legislation, like dismembering the Voting Rights Act or attacking unions. A Republican president would support those efforts. I will oppose them," Clinton said.[39]
A Democratic president would also have the ability to nominate more liberal judges to vacancies on lower courts. Those judges would make rulings that have broad repercussions throughout society by setting precedents that guide future courts. These appointments last for the life of the judge, enduring beyond a president’s tenure and effectively extending his or her legacy.[9]
Senate rules
There could be more pressure to use the nuclear option to change Senate procedures and eliminate the filibuster for legislation. Under the current rules, legislation can be filibustered, and 60 votes are required to bring the filibuster to a halt. In practice, the hurdle has made it difficult to get legislation through the chamber because the minority has this tool to block legislation.[10][11]
The nuclear option is a way to change the Senate process with a simple majority vote. Typically, changing Senate rules takes a supermajority. The Democrats used the procedural move in 2013 and got rid of the filibuster for all nominations except for potential Supreme Court justices.[12] Ever since then, there has been pressure from some to go further. That pressure could grow under a Republican president.[13][14]
Under a Democratic president and Republican Congress, using the nuclear option to eliminate the filibuster for Supreme Court nominations would be unlikely.
Obamacare
Obamacare would likely be safe under a Democratic president. Just as President Obama did, the new president would be able to veto any repeal efforts. That would keep the measure safe so long as the veto is not overridden.[40][41]
Reacting to the veto attempt at a campaign event in Iowa on January 4, 2016, Hillary Clinton said she would protect Obamacare. “The Republicans just want to undo what Democrat [sic] have fought for decades and what President Obama got accomplished. So we need a president, just as President Obama will, to veto that.”[42]
Dodd-Frank
A Democratic president would also protect Dodd-Frank from repeal efforts under a Republican Congress, and Democrats in Congress have been wary of any proposed changes.[43]
Hillary Clinton has also been protective of the law. In a New York Times op-ed on December 7, 2015, she said, "As president, I would not only veto any legislation that would weaken financial reform, but I would also fight for tough new rules, stronger enforcement and more accountability that go well beyond Dodd-Frank."[44]
Executive actions
Under a Democratic president, Obama's executive actions would likely remain in effect (excluding those that could be struck down by the Supreme Court). It is also likely that more executive orders would be issued if, like Obama, the new president feels that she cannot work with Congress and instead decides to pursue a "pen and phone" strategy.[23][24]
Hillary Clinton has said she would use executive powers if Congress does not cooperate. Speaking about corporate inversions (situations where U.S.-based companies merge with smaller foreign firms to headquarter abroad in order to lower their tax liability) at a campaign event in Iowa on December 9, 2015, Clinton said, “This is not only about fairness. This is about patriotism If Congress won’t act, then I will ask the Treasury Department, when I’m there, to use its regulatory authority, if that’s what it takes.”[45][46][47]
Scenario 3: Republican president, Republican House and Democratic Senate
Under a Republican president and a divided Congress, consensus would be difficult to find. The Democratic-run Senate would serve as a check on the agenda that a Republican president and House would want to pursue.[48]
Donald Trump pledged to work with Congress. During a campaign event in Las Vegas on January 21, 2016, Trump said, “I can tell you, they like me, those guys. And there’s nothing wrong with that, folks. We’ve got to make deals. We don’t want to sign executive orders, we want to make good deals.” He added, “Ronald Reagan would get along with Tip O’Neill and they’d sit down and make great deals for everybody. That’s what the country’s about.”[49]
Supreme Court and the judiciary
A Republican president would look to nominate a Supreme Court justice in the same mold as Scalia, but it's unclear if a nominee with Scalia's judicial temperament could be confirmed by the Senate, which could refuse to consider the nominee. The result could be that a more moderate justice is nominated in order to get confirmed. However, the president could also seek to make a recess appointment, but the justice's term would end with the end of the next session of Congress, rather than the lifetime appointments provided by Senate confirmation.[50][51]
Legislation
Legislation, including Obamacare and Dodd-Frank, would be difficult to repeal. Senate Democrats would have the ability to set the legislative schedule in the chamber and could decide not to consider those bills. Senate Democrats also would have the filibuster in order to block legislation, which means that there would not likely be any efforts to get rid of the filibuster.[52]
Executive actions
It would be up to the discretion of the Republican president to decide which—if any—executive actions to repeal. Under a Republican president, executive actions on immigration, guns, equal pay, and others would likely be undone.[53]
Scenario 4: Democratic president, Republican House and Democratic Senate
Under a Democratic president and a divided Congress, agreement would be difficult to find. The Republican-run House would serve as a check on the agenda that a Democratic president and Senate would want to pursue.[48]
Supreme Court and the judiciary
A Democratic president could be able to change the balance of the court. Such a president would look to nominate a more moderate Supreme Court justice than Scalia. But it's unclear if the Democratic-led Senate would be able to confirm the nominee because the justice could be filibustered by the Republican minority. Sixty votes are need to overcome a filibuster under Senate rules. The Democratic president may be forced to choose a more conservative nominee in order to win Senate confirmation. The president could also choose to make a recess appointment in order to avoid the Senate process, but the appointment would be temporary.[50][51]
Legislation
Legislation, including Obamacare and Dodd-Frank, would be difficult to repeal. Senate Democrats would have the ability to set the legislative schedule in the chamber and could decide not to consider those bills. Senate Democrats also would have the filibuster in order to block legislation, which means that there would not likely be any efforts to get rid of the filibuster.[54]
Executive actions
Under a Democratic president, Obama's executive actions would likely remain in effect (excluding those that could be struck down by the Supreme Court). It is also likely that more executive orders would be issued if, like Obama, the new president feels that he or she cannot work with Congress and instead decides to pursue a "pen and phone" strategy.[23][24]
Recent news
This section links to a Google news search for the term 2016 + presidential + candidates + congress
See also
Footnotes
- ↑ Roll Call, "First Look: Can Democrats Win the Senate in 2016?" January 27, 2016
- ↑ Politico, "How Democrats Could Win the House. Really," November 3, 2015
- ↑ 3.0 3.1 CNN Politics, "Obama vetoes Obamacare repeal bill," January 8, 2016
- ↑ The Washington Post, "McConnell and Grassley: Democrats shouldn’t rob voters of chance to replace Scalia," February 18, 2016
- ↑ 5.0 5.1 Los Angeles Times, "Justice Antonin Scalia's death shifts balance of high court, creates major election issue," February 13, 2016
- ↑ 6.0 6.1 Fox News.com, "Presidential politics: How to ensure conservative judicial nominees on the Supreme Court," January 29, 2016
- ↑ 7.0 7.1 Supreme Court, "Biographies of Current Justices of the Supreme Court," accessed February 18, 2016
- ↑ 8.0 8.1 The Washington Post, "Why the next Supreme Court vacancy will favor liberals, no matter who retires," December 31, 2015
- ↑ 9.0 9.1 Americans United for Life, "Extending the President’s Influence: The Importance of Federal Judicial Nominations," April 23, 2010
- ↑ 10.0 10.1 No Labels, "UNDERSTANDING THE FILIBUSTER," accessed February 19, 2016
- ↑ 11.0 11.1 Politico, "Democrats learn to love the filibuster," February 3, 2016
- ↑ 12.0 12.1 The Washington Post, "Reid, Democrats trigger ‘nuclear’ option; eliminate most filibusters on nominees," November 21, 2013
- ↑ 13.0 13.1 Roll Call, "McConnell Faces More Calls for ‘Nuclear Option’ in Senate," September 18, 2015
- ↑ 14.0 14.1 The Daly Caller, "Reform The Senate Filibuster And Make The Upper Chamber Work Again," October 6, 2015
- ↑ ABC News, "Day Before Iowa Caucus, Donald Trump Surprised by His Own Lead," January 31, 2016
- ↑ Bloomberg, "Republicans Eye Quick Obamacare Repeal If Party Wins White House," February 5, 2016
- ↑ CNBC, "Dodd-Frank Act: CNBC Explains," May 11, 2010
- ↑ The Hill, "Trump: Economic bubble about to burst," October 14, 2015
- ↑ Fox Business, "Repealing Dodd-Frank Easier Said Than Done," November 6, 2015
- ↑ Breitbart, "Hensarling: Repeal Dodd-Frank," July 18, 2015
- ↑ National Review, "A Growth and Jobs Agenda," September 7, 2011
- ↑ NBC News, "113th Congress Not the Least Productive in Modern History," December 29, 2014
- ↑ 23.0 23.1 23.2 USA Today, "Obama's executive action rollouts increasing in pace," April 22, 2015
- ↑ 24.0 24.1 24.2 The Hill, "Obama’s ‘pen and phone’ barrage," December 28, 2014
- ↑ The Wall Street Journal "Jeb Bush Proposes Rollback of Regulations," September 22, 2016
- ↑ NPR, "As 2016 Elections Loom, So Does A Possible End To DACA," January 3, 2016
- ↑ BBC, "Obama admits US gun laws are his 'biggest frustration'," July 24, 2016
- ↑ Fox News, "Obama executive action on guns to require background checks for more sales," January 5, 2016
- ↑ CNN Politics, "Trump: I will 'unsign' Obama executive action on gun control," January 3, 2016
- ↑ The Atlantic, "Obama's New Equal-Pay Rules," January 29, 2016
- ↑ U.S. Environmental Protection Agency, "Clean Power Plan for Existing Power Plants," accessed February 19, 2016
- ↑ CNN politics, "Obama unveils major climate change proposal," August 2, 2015
- ↑ Cruz For President, "CRUZ STATEMENT ON PRESIDENT OBAMA’S EPA REGULATIONS," accessed February 19, 2016
- ↑ CNN Politics, "Supreme Court blocks Obama climate change rules," February 10, 2016
- ↑ The Hill, "Court won’t block Obama’s climate rule," January 21, 2016
- ↑ SCOTUSblog, "States move to block “Clean Power Plan” (UPDATED)," January 26, 2016
- ↑ The Washington Times, "Supreme Court halts Obama carbon emissions rule," February 9, 2016
- ↑ Politico, "Clinton, Sanders blaze different trails on Supreme Court nomination," February 16, 2016
- ↑ The Boston Globe, "A make-or-break moment for Supreme Court appointments," January 8, 2016
- ↑ The Hill, "House fails to override ObamaCare veto," February 2, 2016
- ↑ The Hill, "Senate fails to override Obama veto," January 21, 2016
- ↑ NBC News, "Hillary Clinton Slams GOP Vote to Repeal Obamacare," January 4, 2016
- ↑ Politico, "Democrats' new cause: Dodd-Frank," July 21, 2015
- ↑ The New York Times, "Hillary Clinton: How I’d Rein In Wall Street," December 7, 2015
- ↑ AP:The Big Story, "Clinton offers new 'exit tax' on US-foreign company mergers," December 7, 2015
- ↑ The Wall Street Journal, "Hillary Clinton Talks Tough on Executive Action," December 9, 2015
- ↑ The Hill, "Clinton floats executive action crackdown on corporations," December 9, 2015
- ↑ 48.0 48.1 Fox6now.com, "“We’ve had divided government:” One-on-one with House Speaker Paul Ryan," February 19, 2016
- ↑ The Washington Post, "Trump knocks Cruz on icy relationships in Congress, says deals are ‘what the country’s about’," January 21, 2016
- ↑ 50.0 50.1 CRS Report for Congress, "Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and Senate," July 6, 2005
- ↑ 51.0 51.1 CRS Report, "Senate Consideration of Presidential Nominations: Committee and Floor Procedure," March 9, 2015
- ↑ Congressional Research Service, "Filibusters and Cloture in the Senate," May 31, 2013
- ↑ NPR, "So What Is An 'Executive Action' Anyway?" November 20, 2014
- ↑ Congressional Research Service, "Filibusters and Cloture in the Senate," May 31, 2013
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