In lawmaking understanding which Branch of government has the burden to act is a fine art that often determines whether legislation will pass or fail and who ends up with the political advantage. There are many instances where one chamber of Congress will publicly apply pressure on the other chamber to pass or reject legislation. Often this pressure to make someone else act is as much about shifting blame if something goes wrong as much as it is about legislating: The House, for example, may ask the Senate to pass a bill everyone privately knows the Senate cannot pass in order to save the House grief for inaction.
On the other side of the coin, kicking the ball into someone else’s court at the right time in the legislative process is a great way, if done properly, to break Congressional deadlock.
This type of parliamentary maneuvering is something Trump is becoming better at as his knowledge of the Congressional system expands.
To break the Congressional deadlock on Trump’s immigration and health care policies, Trump has followed our advice which called for him to force Democrats to deal on both topics by cancelling DACA and Obama’s illegal health care subsidies.
But by announcing a deadline for phasing out DACA the burden of action has – going forward – shifted from Trump to Congress; the media’s anti-Trump hysteria of this week over DACA notwithstanding.
Soon enough the public will forget Trump ended DACA this week. What they will remember is that Congress needs to act. And if Congress does not pass a legislative replacement, Trump can blame Congressional Democrats for not living up to their campaign promises to pass a Dream Act thus angering the Democrat base ahead of the midterms.
To force recalcitrant Senators to pass a some sort of repeal of Obamacare Trump has hinted he may end subsidies for the exchanges. If the payments are withdrawn, as I have recommended Trump do, premiums will skyrocket and force the Senate to pass subsidy funds since the House never appropriated money for those subsidies as the Constitution requires them to do before money is spent (to those of you who are not members of Congress, this means the subsidies were and are completely illegal budget expenditures).
Through Trump’s termination of Obama’s illegal executive orders on immigration and health care, Trump has wisely kicked the ball into Congress’ court, especially Democrats who have been following an obstruction strategy.
To see how Trump can achieve maximum political and policy advantage I will walk you through how the burden of action will control the parliamentary process.
As was predicted, the immediate response by the Left to the ending of DACA and the subsidies was to blame Trump for any problems that may result from those decisions.
The problem with this for the Left is that blaming Trump is not tenable much longer for parliamentary reasons.
Soon enough Congress will introduce legislation to renew DACA and the health care subsidies. Attached to them will probably be Republican legislation for a variety of stricter immigration controls and repealing parts of Obamacare that are hated by Democrats.
When bills are introduced on the floor of the House and Senate, the burden to act will shift to Congressional Democrats who will be left in a very poor negotiating position. If Senate Democrats do not break from their original obstruction strategy and filibuster the DACA and health care fixes they will get the blame for blocking them no matter how they explain the reasons why this fix was not “the right fix” to a public that will not be persuaded by such intricate legal details.
If Senate Democrats retreat from obstruction and vote for cloture they will be handing Trump major victories on immigration restriction and Obamacare repeal that piggy backed on the DACA and subsidy renewals.
Trump has already prepped the stage for setting up “Chuck and Nancy” for the blame if they do not agree to a DACA fix by Trump giving the impression that both he and the Democrat leaders had agreed to a specific DACA fix. The “deal” that was announced centered around agreeing to “strong border security” for the Dream Act. Because Trump avoided discussing details behind what exactly “strong border security” entailed he has set an expectation that the Democrats agreed to a restrictionist agenda before the Democrats knew what would be included. This makes it harder for the Democrats to persuasively back away from immigration legislation on grounds that it is too rightwing because Trump will point back to his “agreement” with “Chuck and Nancy” if they start to hesitate.
A similar conundrum awaits the Democrats when health care legislation is introduced: If Senate Democrats filibuster the subsidy renewal on grounds that it repeals too much of Obamacare the Democrats are who will rightly be blamed by Trump for allowing the subsidies to be left out to dry because the Democrats will have the parliamentary burden to act by voting for or against cloture the moment the Republicans put a subsidy fix on the Senate floor.
To maximize Trump’s negotiation position even further he should continue to insist a laundry list of immigration restriction provisions be included in any DACA bill.
He should also begin to demand a significant repeal of Obamacare (perhaps McConnell’s original BRCA bill) be attached to any health care subsidy bill.
The reason for asking Democrats to fold on everything is so that if the Democrats ultimately meet Trump even halfway on these Republican base-pleasing demands Trump will have scored a tremendous victory.
Trump should also make clear to Ryan and McConnell that he himself will directly lobby Conservative Congressmen and Senators to vote against any immigration of health care legislation that does not include major Conservative priorities in exchange. He should also threaten to veto any bill he thinks does not extract enough painful concessions from Democrats. This will all go to prodding Ryan and McConnell to make their legislative fixes as difficult for Democrats to support as possible.