For all those persons concerned “clown” Donald Trump or “wacko” Ted Cruz or “liar” Hillary Clinton will be our next president, I am here to calm your nerves and tell you it really doesn’t matter — at least not in the ways you think. Less than a year from now on Nov. 8, no matter who our country elects to be its next president, that person will be severely constrained.
Notwithstanding the results of the presidential race, Congress is likely to remain divided — and polarized. Barring some catastrophic change in the ideological makeup of the country, a realigning world event or political implosion, entrenched by their massive gains in the 2014 midterm elections, Republicans are likely to maintain at least a marginal majority in the House of Representatives after the 2016 election. On the opposite side of the United States Capitol, in the Senate, either party will probably hold only a 51-49 or 52-48 seat majority after the 2016 election. Based upon the allocation of Senate seats up for election in 2016, and because turnout in presidential elections seems to benefit Democrats overall, Democrats are much more poised to make pickups than Republicans.
While the House of Representatives is a majority-focused institution, which only requires a simple majority vote to advance legislation, the Senate is a minority-focused institution. In the Senate, in almost all instances, a simple majority is not enough to advance legislation. In the Senate, to break a filibuster and advance legislation, a three-fifths or 60-vote threshold must be crossed. This means that even if one party holds a 52-48 or 51-49 seat majority in the Senate, without a truly bipartisan agreement, the minority party can still stymie legislative progress.
If Clinton is elected president — the most likely Democrat at this point — a Republican majority in the House of Representatives and/or Republican minority in the Senate will be able to restrain her, thereby keeping a check on her left-leaning policy ambitions. If Trump or Ben Carson are elected president — the highest-polling Republicans at this point — a Democratic majority or minority in the Senate will be able to constrain them, thereby keeping a check on their right-leaning policy ambitions. No matter which party controls the White House, and no matter which party has a majority in the House of Representatives, unless either party has a filibuster-proof Senate majority, the Senate minority can severely restrain far-left or far-right legislation, thereby moderating a president of the opposing party. Because of this, little significant legislation is likely. Though Republicans currently hold a 54-46 Senate majority, due to the constraints mentioned earlier, in the 2016 election at least, it is nearly impossible for them to pick up the six Senate seats necessary for a filibuster-proof majority. For much of the same reasons, it is nearly impossible for Democrats to pick up the 14 Senate seats necessary to have their own filibuster-proof majority. And this dynamic isn’t likely to change soon.
While the next president will be severely limited on the legislative front due to institutional constraints and partisan polarization, another avenue is wide open to pursue — executive orders, judicial appointments and bureaucratic rulemaking. While the Constitution tasks Congress with creating laws, Congress is not large enough or specialized enough to implement legislation. The intricate details are left to bureaucratic agencies, such as the Department of Energy or Department of Agriculture, whose jurisdiction falls under the executive branch. As head of the executive branch, the president has the “real” authority to direct the creation and modification of rules and regulations. My prediction is that this avenue is likely to be utilized frequently by the next president because of Congress’ lack of productivity as of late. For the current president, this is already the case. Noticing Congress’ near-total paralysis o
n immigration reform, President Barack Obama directed certain federal departments to limit or modify the enforcement of federal law, among other things. The president has also issued orders concerning refinancing student loans, raising the minimum wage for federal contractors and reforming sentencing guidelines for nonviolent offenders, justifying his need for unilateral action by noting Congress’ lack of action.
Therefore, when voting for our next president, don’t be concerned with their legislative prowess, or lack thereof. I expect very little fruitful interaction between the next president and the next Congress. The next president will be going it alone. Be more concerned with what unilateral actions the next president will take, who he or she will appoint to the federal judiciary and executive departments and which federal agencies he or she will direct to do what. That is where the next president’s real power lies, most of the public just hasn’t noticed it yet.
First-year Ph.D. student studying American politics