What Biden, Trump have in common

If President Joe Biden sometimes sounded a lot like Donald Trump during his State of the Union address, boasting about a record of economic nationalism, the imitation may soon run the other way. Biden’s attacks on congressional Republicans for being allegedly eager to cut Medicare and Social Security were a clear preview of how he hopes to run against the GOP in 2024. But they were also a possible preview of how Trump may try to reclaim his own party’s nomination — by reprising his 2016 campaign’s rejection of Tea Party austerity and attacking potential rivals (which means, primarily, Ron Desantis) as libertarian dogmatists who don’t care about the middle class.

That strategy was previewed a bit recently by Joseph Zeballos-roig and Shelby Talcott in Semafor. Their subject was the so-called Fair Tax, a long-standing fascination for certain right-wing activists that proposes to replace the U.S. tax code with a sales tax. This would yield certain advantages in economic efficiency; it would also result in a dramatic tax increase on the middle class.

In the heyday of the Tea Party, when implausible policy proposals were all the rage, the Fair Tax was endorsed by many of today’s 2024 hopefuls: Nikki Haley, Mike Pence and Mike Pompeo and, yes, by Desantis himself. Which gives Trump a license to accuse all these potential rivals of supporting a middle-class tax hike — and the Semafor writers quote a Trumpworld source basically promising an attack along those lines, to force Trump’s rivals to “answer for what they supported and what they’ve advocated in the past.”

That same quote could easily apply to the proposed entitlement changes that many Republicans (again, including Desantis) embraced in the same era, under the influence of Paul Ryan’s budget blueprints. Those proposals were serious rather than crankish, if ill-timed for a moment when there was more fiscal space than deficit hawks believed. But they were also seriously unpopular, and Trump’s discarding of them was crucial to his success in 2016. And having discarded them then, he’s well positioned to go after Desantis and others now — in imitation of not only his prior campaign but also, as National Review’s Philip Klein points out, the strategy pursued by Mitt Romney in the 2012 primaries, when he sank Rick Perry’s candidacy in part by blasting Perry for calling Social Security a “Ponzi scheme.”

One would think that had the framers intended the Court of Appeals clause to constrain the majority’s power to run its own house and to grant the minority a power it otherwise would not enjoy, they would have done so explicitly.

to answer the how question, the constitution does so explicitly. For example, most decisions are made by majority vote, thus protecting the majority party’s power to speak for the chamber. But in certain limited circumstances, the framers have demanded a supermajority vote, thus empowering the minority. One would think that had the framers intended the Court of Appeals clause to constrain the majority’s power to run its own house and to grant the minority a power it otherwise would not enjoy, they would have done so explicitly.

The phrase “by and with the advice and consent of the Senate” has its own history. It was used in the Appointments clauses of the U.S. Constitution in 1789 and has been included in the state constitution, at least in some limited form, since 1894. It is arguable that this clause has never been interpreted literally.

Let's just focus on the word “advice.” In common usage, “advice” means “recommendation” — something that is sought and given before a decision is made. Has a single president ever sought the advice of the Senate before nominating a Cabinet member or federal judge? Maybe a senator or two, but the entire Senate? Of course not. Likewise for New York governors: Any record of a governor asking for the Senate’s advice before nominating an agency head? And if the “full Senate” construct is to be followed, is there even any mechanism to get the full Senate’s advice?

I think it fair to conclude that the usage of the phrase in question, which was inserted in the 1970s, was not to be taken literally, otherwise the drafters would have dropped the word “advice” from the formulation. Instead, the drafters lifted the phrase from Article V,

Section 4 of the state constitution, where it had been in use since 1894. If we cannot give the phrase its literal meaning, it seems prudent to examine how the phrase has been interpreted over the decades.

Since 1894, has any gubernatorial commissioner nominee been rejected by the Senate without a full vote of the body? Of course. History is littered with would-be commissioners who have been voted down. In fact, until the recent dustup, no one had ever even suggested that the governor’s pick for commissioner of transportation could bypass the Senate Transportation Committee and go straight to the Senate floor.

Oh, I can hear the objections: Those were mere commissioners; we are talking about the chief judge here. True but irrelevant: The phrase is identical in both sections of the constitution, and a first-year law student could tell you it must be interpreted consistently. Furthermore, if we are to divine the intentions of the 1970s drafters of the Court of Appeals clause, isn’t it fair to assume they knew how the phrase had been interpreted in the past and, in using it without modification, had intended that same interpretation going forward?

So although it has a certain surface appeal, the “Senate means Senate” mantra isn’t quite as clear or compelling as its advocates would have us think.