Congress is not, to put it mildly, the most popular institution in the United States. Its approval ratings are low. It has developed a reputation for mindless obstructionism. And when Donald Trump promises to “drain the swamp” in Washington, he seems to be talking in large part about the legislature.
Congress may also be the last, best hope of those who fear substantial parts of Trump’s announced agenda.
Our national legislature has a reputation for fecklessness in disputes with the White House. After all, legislation nearly always requires the president’s signature, so how can lawmakers hope to rein him in? But this standard view is too myopic — Congress does a lot of things other than pass legislation, and most of them do not require presidential assent. Moreover, many of them can form effective tools with which to push back against the president’s agenda.
Yes, Republicans will control both the House and the Senate in January, just as they do now. But if Democrats vote as a bloc, it wouldn’t take that many GOP defections to check Trump. And there are already early indications that at least some Republican lawmakers might want to do just that.
Consider what I call the congressional “personnel power,” one key part of which is the requirement of Senate advice and consent for judicial appointments and numerous executive appointments, ranging from Cabinet posts on down. Assuming that Republican John N. Kennedy wins the Louisiana Senate runoff next month (as seems likely), Republicans will have only a 52-48 edge in the upper chamber, which means that just three Republican defections, alongside a unified Democratic caucus, could defeat a nomination.
Obviously, most Republicans will not oppose Trump at every turn. But there are plenty who might be inclined to oppose him at least occasionally. Sens. Ben Sasse (Neb.), Jeff Flake and John McCain (Ariz.), Susan Collins (Maine), Lisa Murkowski (Alaska), Rob Portman (Ohio) and Lindsey O. Graham (S.C.) either opposed or withdrew support from Trump in the general election. Sen. Rand Paul (Ky.) is a libertarian who recently told The Washington Post’s David Weigel that he was disinclined to support Trump’s reported favorites Rudolph W. Giuliani or John Bolton for secretary of state; Paul might be inclined to oppose other hawkish national security nominees, as well. It should be possible to assemble at least three from that group of eight (and perhaps other Trump-skeptical Republicans) to defeat extreme nominees.
Across the Capitol, party discipline is generally stronger in the House, and partisan gerrymandering means that many members will worry more about drawing primary challengers for opposing Trump than about alienating moderates by supporting him. But if relations sour between the White House and Congress, even the GOP-controlled House might consider using its powers of investigation and contempt to keep close tabs on the administration. These powers have been used to significant effect in recent years, first by Democrats overseeing the George W. Bush administration and then by Republicans overseeing the Obama administration. House Speaker Paul D. Ryan has a notoriously on-again-off-again marriage of convenience with Trump, and Rep. Jason Chaffetz (Utah), who chairs the Committee on Oversight and Government Reform, has expressed some Trump-skeptical views at points. They might be inclined to hold hearings about controversial policies and ask tough questions of members of the administration, especially if Trump’s popularity sinks lower once he’s in office.
Both chambers might also use their power of the purse, simply refusing to fund agencies or activities that they find odious. (Surely, at any rate, if Trump’s campaign promises are to be believed, no money need be appropriated to finance the construction of a wall on our southern border.)
In pushing back against a president of their own party, Republicans would hardly be doing something unprecedented, even in the current age of heightened partisan polarization. George W. Bush’s attempt to nominate Harriet Miers to the Supreme Court fell to bipartisan opposition, as did President Obama’s nominations of Goodwin Liu to the Ninth Circuit Court of Appeals, Dawn Johnsen to the Justice Department’s Office of Legal Counsel and Debo Adegbile as head of the Civil Rights Division of the Justice Department. And actual failed nominations undoubtedly underestimate the influence of intraparty pushback: Obama nominated Janet L. Yellen to chair the Federal Reserve after a number of Democrats, including Sen. Elizabeth Warren (Mass.), made clear that they would oppose Lawrence Summers for the post.
Unsurprisingly, presidents tend to face the most intraparty pushback when their standing with the public is lowest. Trump will enter office having lost the popular vote, with very low favorability ratings and in the face of massive protests. This will free some Republicans with strong ideological commitments to oppose him (Paul on the national security state comes to mind). Other Republicans will see an opportunity to begin staking their claim to the future of the party by putting some distance between themselves and Trump (Sasse and Ryan may well fall into this camp). Still others represent districts or states that may be close enough to make a “centrist maverick” reputation valuable (Flake and Portman, maybe).
None of these motivations is likely to lead to opposition on all, or even most, matters. Party loyalty, even if not absolute, is still strong. But for any given issue or appointment, a relatively small number of House members or (especially) senators — whether motivated by ideology, status-seeking within the party, constituency placation, some combination of the above or something else entirely — could join with Democrats to block some of the Trump administration’s most extreme actions.
Democrats in both houses would therefore be wise to consider ways of reaching across the aisle to never-Trump and Trump-skeptical Republicans, in an effort to make shared use of these congressional tools of opposition. This will stick in many Democrats’ craw, and with good reason: Republicans did not do much reaching across the aisle over the last eight years. But Republicans will soon control all three branches of the federal government. Republicans will set policy for (at a very minimum) the next two years. Democrats would be wise to work with them where they can find common ground against Trump’s worst policies. If the bipartisan will to use them can be found, Congress has the tools with which to push back.