The U.S. Department of Justice released a redacted version of the full Mueller report Thursday. On this episode of the FiveThirtyEight Politics podcast, the crew reacts to special counsel Robert Mueller’s findings that the Trump campaign did not criminally conspire with Russia to interfere in the 2016 election. The report came to no conclusion about the criminality of President Trump’s actions during the investigation.
Also, the FiveThirtyEight Politics podcast is recording a live podcast in Houston on May 8. Find more information and tickets here.
The FiveThirtyEight Politics podcast publishes Monday evenings, with additional episodes throughout the week. Help new listeners discover the show by leaving us a rating and review on iTunes. Have a comment, question or suggestion for “good polling vs. bad polling”? Get in touch by email, on Twitter or in the comments.
President Trump has declared a national emergency to obtain funding to build a wall along the U.S.-Mexico border, after lawmakers did not approve the $5.7 billion he’d requested. And in doing so, he has sparked a debate on whether the executive branch can — or should — use its power to unilaterally achieve a policy goal. The president does have an enormous amount of latitude to declare national emergencies, but Trump’s use of the power in this way is unusual and could have far-reaching consequences.
“A Democratic president can declare emergencies as well,” House Speaker Nancy Pelosi warned Republicans on Thursday. “So the precedent that the president is setting here is something that should be met with great unease and dismay by the Republicans.”
The action raises problems of both principle and precedent for some right-leaning and libertarian legal specialists. But others argue that Trump’s action is probably legal or say they’re not especially worried about potential consequences down the line.
First of all, some legal experts see a fundamental problem with Republicans’ endorsement of a potentially dramatic expansion of executive power. There is a potential case to be made that Trump’s action, regardless of what it means for the future, violates basic principles of limited-government conservatism, which is generally opposed to executive overreach and supportive of a strong separation of powers. “I think it’s problematic in general, regardless of the legality, for the president to stretch his authority under these broad statutory delegations in ways that haven’t been done before,” said David Bernstein, a professor of law at George Mason University. “It gives the president more power to act unilaterally, and that’s not the way our system is supposed to work.”
Bernstein added that he blames former President Barack Obama for beginning this trend. First in 2012 and then again in 2014, Obama issued sweeping executiveorders that protected young undocumented immigrants who were brought to the country as children. But he said Republicans shouldn’t allow this kind of executive overreach to continue, particularly for an expensive project like the wall. “It’s not just that overly broad executive power is being endorsed here — it’s being endorsed for a quintessential big-government boondoggle,” he said.
The question of property rights is another potentially sticky issue for conservatives, because Trump will likely need to use eminent domain — the government’s power to take private property and put it to public use — to seize much of the land he needs for the wall, according to Ilya Somin, who is a law professor at George Mason and identifies as a libertarian. Conservatives and libertarians both tend to be critical of eminent domain in general, and members of his own party have criticized Trump in the past for his history of support for the tactic and his attempt to use it in a real estate project. “Building this wall will require the seizure of a large amount of private property without congressional authorization,” Somin said. “To the extent that Republicans support Trump on this, they deserve censure for that.”
Others, however, pointed out that Trump isn’t drawing on powers that don’t exist — he’s acting within the broad authority that was given to the president by Congress. “This is not the president making stuff up,” said Josh Blackman, a professor at the South Texas College of Law Houston. But Blackman said that just because Trump’s action may be legal, that doesn’t mean Congress has to go along with it — and he thinks they shouldn’t. “The president asked for the authority to build this wall, Congress said no, and now he’s trying to go around Congress,” he said. “Do I think that’s a good idea? No. But I think the president probably has the authority to do this.”
John Malcolm, a senior legal fellow at the right-leaning Heritage Foundation, said he’s “not overly concerned” about future Democratic presidents declaring a national emergency to achieve their own policy goals because the declaration would need to be grounded in a statute and he doesn’t think there is an obvious candidate to use for something like climate change. “The president doesn’t get to declare a national emergency about anything,” he said. “I think creative presidents might try to do various things along these lines in the future, but they won’t necessarily be successful.”
He added that he’s inclined to trust Trump when he says there’s an emergency that justifies immediate action. “I think there’s no doubt that the threats the president is describing along our southern border are real,” he said. “The real shame is that Congress hasn’t worked with him to come up with a more workable solution that responds to those threats. It seems to me that they’re not doing that because they just don’t like this president.”
But Somin and Bernstein both said they thought Trump was setting a dangerous precedent — future Democratic presidents might want to declare a national emergency of their own over something like gun violence or climate change. “This is how slippery slopes work,” Bernstein said. “One president breaches the norm, then another president breaches it more, and it just keeps going.”
Trump’s declaration of a national emergency is now headed for what will almost certainly be a lengthy court battle. The more immediate question is how Republican politicians will respond. Congress has the power to terminate a president’s emergency declaration through a joint resolution of disapproval, but the resolution would need to pass with veto-proof majorities in both chambers to be successful.
Some Senate Republicans have already voiced concerns similar to Pelosi’s. Sen. Marco Rubio said that “today’s national emergency is border security” but also said that a future Democratic president “may use this exact same tactic to impose the Green New Deal,” a policy framework recently proposed by Democrats that calls for large public investments to combat climate change. But other Republicans — including Senate Majority Leader Mitch McConnell — have changed their public positions; after originally opposing a national emergency declaration, they are now lining up behind the president. In the coming days and weeks, they’ll have a tough choice: whether to back the president or rebuke him.
The public response had clear effects in Congress. Congressional Republicans had been unified behind the president in the early stages of the shutdown, but cracks started to emerge as it dragged on. In public, this was demonstrated on Thursday by six Senate Republicans voting for legislation put forward by Senate Democrats that would fund the government without money for the wall. And, in private, disagreement with the president’s strategy extended beyond those six. A meeting between Senate Republicans and Vice President Mike Pence on Thursday reportedly turned into a venting session, with some senators scolding Pence for the White House’s strategy. Among the critics was Majority Leader Mitch McConnell, who has the power to bring forward legislation, whether Trump likes it or not.
We don’t know much about the private discussions between McConnell and the White House, but it’s possible that Trump folded in part because McConnell suggested Senate Republicans would likely move forward soon with legislation funding the government without paying for the wall — with or without the president’s support. Although Trump, in a Rose Garden speech on Friday, acted as if it were his decision to end the shutdown, the decision to fold may not truly have been Trump’s to make, and the speech may have been McConnell allowing the president to save face and concede before the Republicans in the Senate fully broke with him.
To be clear, it’s not certain that Trump has lost the broader fight over the wall. It’s hard to see congressional Democrats offering much funding for it, but maybe they will agree to some kind of compromise that includes a few billion dollars. (I wouldn’t bet on this, as liberal Democratic opposition to the wall seems to be hardening.) Or, as he suggested on Friday, Trump could declare a national emergency and reallocate funds from other parts of the government to finance a wall. Such a move will almost certainly draw legal challenges. But Trump might win in the courts, as he (eventually) did on his executive order banning travel from certain countries into the United States.
For now, however, we’re back to where we were when the shutdown began. Trump and Congress have three weeks to figure out a solution. In public, at least, all sides are staking out the same positions they held when the shutdown started. Trump will likely need a different strategy going forward. The one he employed over the last month — shutting down the government (which is unpopular) to get the wall (which is unpopular) — could not keep his party united forever.
The FiveThirtyEight Politics podcast publishes Monday evenings, with occasional special episodes throughout the week. Help new listeners discover the show byleaving us a rating and review on iTunes. Have a comment, question or suggestion for “good polling vs. bad polling”? Get in touch by email,on Twitteror in the comments.
George H.W. Bush, whose death at 94 was announced on Friday by his family, was a hugely influential figure in the Republican Party: chairman of the Republican National Committee, vice president, president and father of another GOP president. But the GOP has changed dramatically since it nominated Bush for the presidency in 1988 — a fact reflected in the ex-president’s strained relationship with the GOP’s new standard-bearer, President Trump.
So, I think Bush’s death is another moment to highlight what my colleague Clare Malone described in the summer of 2016 as “The End Of A Republican Party.” Let’s run through some of the big shifts that have occurred within the GOP:
The GOP was once a more moderate party
Ideology is complicated to measure. By some standards, the Republican Party has moved to the left. In a poll conducted last year, 42 percent of Republicans backed same-sex unions; it’s safe to assume that number was far lower during George H.W. Bush’s presidency. In 1992, one of South Carolina’s senators was Republican Strom Thurmond, who ran a 1948 presidential campaign featuring his opposition to civil rights for blacks. Today, one of South Carolina’s senators is Republican Tim Scott, who is African-American.
But by most other measures, the GOP is far more conservative than it used to be. The General Social Survey, for example, shows self-identified Republicans moving far more toward the “extremely conservative” end of its scale (as opposed to “extremely liberal”) over the past several decades.1
In Bush’s era, Fox News did not exist. Deeply conservative billionaires Charles and David Koch and their allies had not created a huge network of right-wing groups that constitute basically an alternative political party. There was no tea party or House Freedom Caucus. Trump may be personally more conservative than Bush, but even if he weren’t, the forces that push a Republican president to the ideological right are stronger now than they were in the 1980s.
Bush himself famously signed a tax increase to help reduce the federal budget deficit, a move that angered the party’s conservative base. His two GOP successors (George W. Bush and Trump) never even really considered tax hikes, aware of the power of the party’s conservative coalition.
The GOP used to be more in line with the nation demographically
Trump’s rallies include lots of older white people, as the stereotype goes. But that is the Republican Party of today. The country has become older, more diverse and more educated. The GOP, meanwhile, has grown even more disproportionately old. And while its voters grew more diverse along with the country through the 1980s (though at a bit of a lag), that shift stalled in the party in the 1990s. Same with education: The share of non-Hispanic white voters without a college degree fell throughout the 1950s, ’60s, ’70s and ’80s — in the electorate overall and the GOP. But beginning in the 1990s, it stopped falling among Republicans.
In 1992, according to the Pew Research Center, about 38 percent of registered voters who identified as Republicans were 50 years or older. By 2016, that number had grown to 58 percent. In 1992, 61 percent of Republicans were under 50, compared with 41 percent today.3
Republicans were once competitive on the coasts but weak in the South
The ideological and demographic shifts described above have corresponded with big changes in the GOP’s geographic coalition. In 1988, Bush won California — the sixth straight election in which the Republican presidential candidate carried the Golden State. Bush also won Connecticut, Delaware, Illinois, New Jersey and Vermont. The Republican caucus in the U.S. Senate from that era included two members from New Hampshire, two from Oregon and one from both Delaware and New York. There were zero Senate Republicans from Alabama, Arkansas, Georgia, Louisiana and Tennessee.
All but one of the 16 Senate seats I just described are now held by the opposite party that controlled them in 1992, as the GOP gained ground in the South but lost power on the coasts. Trump, reflecting the growing weakness of Republicans in California, lost there in 2016 by 30 percentage points. Bush lost West Virginia in 1988 by 5 percentage points. Trump’s 42-point win in West Virginia in 2016 was his second-biggest margin in any state.4
Let me not overstate the changes in the Grand Old Party. It still loves to cut taxes, like it did in the George H.W. Bush era. It’s still overwhelmingly white. The majority of its voters are still whites without college degrees. White evangelical Protestants are still about a third of the party. It still deploys negative racial stereotypes about non-white Americans to appeal to white voters. (Remember the Willie Horton ad of the 1988 Bush campaign?)
But the changes highlighted here have dramatically altered the power dynamics in Washington. Presidents Nixon, Reagan and George H.W. Bush always had to share power with Democrats, who controlled the House from 1949 to 1994.5 But since the GOP won the House in 1994, the party has held the chamber for all but four years.6 (They won’t be in control in 2019, of course.)
When George H.W. Bush won 53 percent of the national popular vote in 1988, it was not that remarkable. Richard Nixon had won more than 60 percent in 1972, and Ronald Reagan breached 50 percent in both 1980 and 1984. But 1988 was a watershed moment for the Republican Party — it was about to start a measurable decline in terms of its national standing. In the seven presidential elections since then (including Bush’s 1992 defeat), Republicans have won more votes nationally than Democrats just once (2004).
The tensions between Trump and the Bush family, and between Trump and McCain, speak to this broader narrative. Trump is a different kind of Republican — and he is changing the party in his image in ways they don’t like. But he is also the product of a different Republican Party than the one that the Bushes and McCain ascended in. Trump got the GOP nomination in some ways by embracing what the Republican Party had become, not what the Bushes wished it were.
CORRECTION (Dec. 1, 2018, 1:30 p.m.): An earlier version of this article said President Trump’s largest margin of victory in any state in the 2016 election was in West Virginia. It was in Wyoming.