Donald Trump learns how durable Barack Obama’s policies are
Donald Trump may not like it, but he can’t—so far— reverse two of Barack Obama’s signature accomplishments: the Affordable Care Act (ACA) and the Iran nuclear deal. In one emblematic, frustrating day, Trump both saw the failure of the Senate Bill to repeal and replace the ACA and was forced by his advisers to certify that Iran is in compliance with its nuclear obligations.
Trump ran against Obamacare and the Iran deal. He’s got a Republican Congress and unilateral legal authority on Iran. So why can’t he act?
The answer is half the stickiness of past decisions in highly constraining political systems, and half Obama’s self-conscious plans to entrench his most important accomplishments. Both are reminders that as president, Trump doesn’t rule the US or the world. Without Congress, he can’t govern at home. Without foreign allies, he can’t impose his will internationally.
The difficulty of putting together 50 Senate votes (plus the tie-breaker, vice- president Mike Pence) to repeal the ACA is, most notably, an object lesson in constitutional constraints derived from the separation of powers. In a parliamentary system, a prime minister with a majority can generally pass or repeal whatever legislation he or she chooses on the basis of party discipline. But the American presidential system denies the executive this sort of authority. By requiring a majority in both houses of Congress, it pushes the president to negotiate a compromise.
That’s particularly noteworthy because some critics have argued that the separation of powers only works the way the framers intended it when there are no political parties. Trump’s failure to repeal the ACA thus far shows that even when the same party controls the presidency and Congress, internal divisions can be broad enough to block the president from passing favoured legislation.
Put another way, it’s not an accident that the Republican Party’s far-right wing and its most moderate members are the ones who balked on the repeal Bill. It’s a feature of a constitutional design that pushes legislation toward the centre to get it enacted.
As for the Obama administration, it couldn’t do anything about a future Republican Congress. But it did have the advantage of passing a law that was intended to confer benefits on citizens who would then be loath to give them up.
This was, for Democrats, an intentional part of the ACA. Obama’s team hoped that it would be hard to repeal the ACA because it would be politically difficult to take away something that is already given. They were keenly aware of what behavioural psychologists and economists call the “endowment effect”, also called “status quo bias”. This is the notion that, rationally or not, people tend to value something more once they are in possession of it, and consequently don’t want to give it up.
The Iran deal is proving to be just as sticky as Obamacare, albeit for international reasons rather than domestic ones. Here, too, the structure of politics matters. The sanctions against Iran that pressured it to make the deal in the first place weren’t just from the US. They were imposed by European allies, under intense lobbying pressure from the US.
As a result, the Iran deal, although the accomplishment of Obama and his secretary of state John Kerry, was in large measure an achievement of international coordination. The European countries were only too happy to sign on, because they never much cared about Iran’s nuclear ambitions in the first place. But their participation was nonetheless a necessary condition for the deal to take place.
Similarly, the US can’t effectively suspend the Iran deal without European buy-in—which is never coming, and certainly not during a Trump administration. Without European agreement to reimpose sanctions on Iran, US sanctions wouldn’t have much bite.
Obama and Kerry knew perfectly well that a future Republican administration might want to reverse the deal. They faced tremendous opposition from Republican senators, and not a few Democrats. So they built in a rather brilliant or, if you prefer, devious entrenchment mechanism. If the US says that Iran isn’t complying, the European states can still take the view that it is, thereby refusing to reimpose their own sanctions.
What’s more, they structured the deal so that if the US decertified Iran, it loses its ability to do inspections that to some degree curtail Iran’s nuclear programme. That’s why Trump’s advisers have pressured him to certify that Iran is complying. Without that certification, the US would have little leverage over Iran and no inspection capacity. In other words, the US is better off certifying than not—and that will remain the case so long as Europe has no intention of imposing sanctions.
Blocked from reversing Obama’s signature initiatives by the Senate domestically and by Europe in foreign affairs, Trump will have to look elsewhere for a political agenda. Cutting taxes would be the natural next step. In theory, Trump should be less constrained here because neither entitlements nor allies are threatened.
But even tax cuts may turn out to be a bridge too far for a president with no prior political experience. The Republican Party still has budget hawks who think tax cuts have to come with spending cuts, and there are congressional rules limiting legislation that can’t be paid for. That will bring Trump back to cutting something from somewhere—and the game of entrenchment may begin again. Bloomberg View
Noah Feldman is a Bloomberg View columnist.
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