The Next 40 Days: What to Expect from President Trump and the 115th Congress

    View Author March 2017

    Last night, on his 40th day in office, President Donald J. Trump made his first appearance before a joint session of Congress.  In his speech, he set forth his vision for what he expects to accomplish in the next 40 days and beyond.

    The first time a newly elected president makes such a speech, it comes with all the trappings of a State of the Union Address, even though it formally does not qualify as one since the president has not been in office for a year and thus cannot look back, as envisioned in Article 2, Section 3, of the Constitution, to “give to Congress information of the State of the Union.”  But President Trump could and did look forward to “recommend for their Consideration such measures as he shall judge necessary and expedient.”

    In his remarks, President Trump called on Congress to “repeal and replace” the Affordable Care Act (ACA or “Obamacare”), to enact a trillion dollar infrastructure bill, to adopt comprehensive immigration reform legislation, and to adopt tax reform legislation that will make American companies more competitive and that will provide “massive tax relief for the middle class.”  Towards the end of the speech, he eloquently made the case for Democrats and Republicans to work together to address the needs of the American public, saying: “The time for small thinking is over.  The time for trivial fights is behind us.  We just need the courage to share the dreams that fill our hearts.  The bravery to express the hopes that stir our souls.  And the confidence to turn those hopes and dreams to action.”

    This was the most effective moment of President Trump’s young presidency.  He sought to project a more inclusive approach to governing, but in doing so he provided little detail on how Congress might achieve these ends.  As a result, President Trump will likely see his personal approval ratings and perceptions of his job performance move up.  (The Republican legislators in Congress who were looking to the president to use his address to break the GOP’s growing intraparty logjams on health care, tax reform, and budgetary issues got little direct help from the chief executive last night.)

    In the Democratic response, former Kentucky Governor Steve Beshear challenged the president and the 115th Congress in particular to address the needs of individuals who have health insurance today as a result of enactment of the Affordable Care Act.  In encouraging the American public to speak out on the issue, he said:  “[I]n 2010, this country made a commitment, that every American deserved health care they could afford and rely on, and we Democrats are going to do everything in our power to keep President Trump and the Republican Congress from reneging on that commitment.”

    As we look ahead to the next 40 days, we look back to our post-election analysis of November 10.  In it, we said:

    With the Trump victory, the only certainty about what lies ahead for the policy agenda in Washington DC is that there will be considerable uncertainty. President Trump will enter the White House as a true outsider, having never before held elected office, someone who repeatedly demonstrated an eagerness to challenge the established leadership of both political parties. He will claim a mandate to tear up “Washington-made deals” and rules that have not yielded results for the American people. Many legislators will follow his lead. Many others will push back mightily.
    We expect President Trump to approach the presidency with the same tenacity and audacity he brought to the presidential campaign. After repeatedly seeing President Trump defy expectations and prove conventional wisdom wrong, one cannot discount the possibility that the Trump approach, when applied to actual governing, could produce results.
    It seems a reasonable possibility that the Trump presidency could eventually take on the now-familiar characteristics of a Trump political campaign: chaotic, messy, divisive, controversial, and often outrageous – but in the end, surprisingly effective.

    To date, it has been all of that and more, but we now move into a period in which the test of whether it has been “effective” will become apparent.

    In his first 40 days in office, President Trump and Congressional Republicans already have accomplished some of the major regulatory reforms they sought through use of the Congressional Review Act (CRA).  When an executive agency issues a new regulation late in a president’s final year in office (a so-called “midnight” rule), Congress may disapprove it by adopting a joint resolution pursuant to the CRA.  With the president’s signature, the joint resolution prevents the regulation from taking effect.  Prior to this year, it had been used only once.  In 2001, President George W. Bush agreed with Congress to reject the ergonomics rule adopted by the Occupational Safety and Health Administration in the waning days of the Clinton Administration.

    The 115th Congress already has passed, and the president has signed into law, joint resolutions overturning three rules:  the Department of the Interior’s Stream Protection Rule, the Security and Exchange Commission’s “publish what you pay” rule, and a rule submitted by the Social Security Administration relating to the “Implementation of the NICS Improvement Amendments Act of 2007.”  The House has approved nearly a dozen additional joint resolutions, which are awaiting consideration by the Senate, including a Department of Labor rule relating to savings arrangements established by qualified state political subdivisions for non-governmental employees; a Department of Education rule relating to teacher preparation issues; and Bureau of Land Management regulations that establish the procedures used to prepare, revise, or amend land use plans pursuant to the Federal Land Policy and Management Act of 1976.

    Congress will continue to consider additional joint resolutions in an effort to block other “midnight” rules adopted late in the Obama Administration.  But over the next 40 days, the push will be toward enacting major health care reform, and then addressing fundamental tax reform for the first time since 1986, considering significant infrastructure spending, and potentially even embarking upon immigration reform (especially a version that begins where the Senate ended its efforts in 2007 and builds on the bipartisan work of the 113th Congress).  Congress also will be waiting for the president’s proposals to address trade on a bilateral basis.

    But this push for legislation will bring with it renewed, even more intense partisan clashes, which already are evident as President Trump and Republicans in Congress seek to replace the Affordable Care Act and on key features of tax reform, such as the border adjustment provision embraced by the Republican House leadership.  Intraparty feuding already has begun to emerge within the GOP on the health care repeal effort, and we expect to soon see intraparty and partisan fighting over government spending and the need to further increase the Treasury Department’s borrowing authority when the current suspension of the nation’s debt ceiling ends on March 15, 2017.

    As will soon become apparent, simple majorities in the House and the Senate are not sufficient to make fundamental changes in laws that affect major sectors of the economy.  As a tool, budget “reconciliation” offers strong procedural protections in moving legislation through the Senate by requiring only a simple majority vote.  But the operation of the “Byrd rule” will place significant constraints on what a Republican Congress can do.  In short, unless they can fashion policy proposals that will have the support of 60 Senators, President Trump and his allies on Capitol Hill will not be able to simply “repeal and replace” Obamacare and they will not be able to make permanent changes to the tax code.  Nor will it be easy to reduce non-defense spending by $54 billion to fund increased military spending.

    We thus will soon be reminded of a fundamental constraint built into the system by the framers of the Constitution.  As George Washington is said to have reminded Thomas Jefferson, the framers created the Senate to “cool” House legislation just as a saucer is used to cool hot tea.  In order to advance legislation through the Senate, with only 52 Republican Senators, President Trump and the Republican leadership will have to be willing to compromise in a body in which Democrats will have the ability to block controversial legislation with a filibuster or through points of order invoking the Byrd rule under budget reconciliation, both of which requires 60 votes to overcome.

    Among President Trump’s many striking characteristics is the agility he displays in continually redefining what “success” looks like with respect to his public policy aims.  As perhaps the least ideological individual ever to occupy the Oval Office, he may need this flexibility as he navigates the churning legislative waters that lie ahead.  But it will also continue to be a source of consternation for Republicans on Capitol Hill, who are destined to revert to intraparty squabbling on major issues in the absence of clear and specific guidance from the new leader of their party.

    With this in mind, we discuss below four major areas of potential legislation:  health care reform, comprehensive tax reform (including international tax reform), immigration reform, and infrastructure spending.