On mandates and deference

One of the arguments I see in favor of confirming Trump’s nominees is that the president-elect, having resoundingly defeated Kamala Harris, has a mandate from the American people. Given his mandate, the argument goes, the Senate should not second guess his selections.

One counterargument I see is that Trump’s victory was not resounding, and certainly not a landslide. This argument is factually correct. The last time I looked, Trump was winning the popular vote by only about 1.6 percentage points and his share was a hair less than 50 percent .

Trump’s electoral victory, while more impressive, depended on very narrow margins in the “blue wall” states. Granted, this was the best GOP presidential showing in quite some time, but the magnitude of an election victory shouldn’t be graded on a curve.

In my view, however, the counterargument to claims of a mandate is irrelevant. As I see it, every elected president, even those who don’t win the popular vote, has a mandate to exercise the full powers of the presidency. That’s what it means to be president. The only limits are (1) the duty to uphold the Constitution, which all presidents swear they will do and (2) the powers conferred by the Constitution on the other branches of government.

As to the second limit, it’s important to remember that every U.S. Senator also has a mandate. His or her mandate is to exercise the powers conferred on Senators.

One of these powers is to vote up or down on presidential nominees. Thus, the president has a mandate to nominate whomever he sees fit for jobs in his administration and each Senator has a mandate to vote yes or no, as they see fit, on all nominees who require Senate confirmation.

In exercising this power, it’s a good idea to grant some deference to a president’s nominees. This is true whether the president won by a landslide (e.g. Ronald Reagan) or squeaked into office (e.g. Bush in 2000 and Trump in 2016).

Granting some deference is a good idea because a president is more likely (though far from certain) to govern effectively with a Cabinet of his choice than with a Cabinet of individuals picked because he couldn’t confirm the people he wants.

Unfortunately, Senators from the opposition party might not want the president to succeed. But starting in January, the Senate will be controlled by the president’s party. Thus, a majority of Senators will have an interest in the president succeeding and will be well advised to accord him some deference in selecting key members of the administration.

But such deference is not required; nor, in theory, should the president’s margin of victory be a factor in whether, or to what degree, to grant it. The Republican controlled Senate has just as much of an interest in enabling Trump to succeed as it would if he had won in a Reaganesque landslide or had lost the popular vote.

I should add that some Senators might believe that a president is less likely to succeed if a particular nominee is confirmed than if that nominee is rejected. For example, a Senator might believe, as I do, that with Matt Gaetz as Attorney General, Trump might well have gotten into more trouble than he will with a less pliable, less incendiary AG.

Senators ought not lightly substitute their judgment for the president’s. However, there may be occasions when they feel compelled to do so. In that case, they should.

So, is the president’s margin of victory completely irrelevant to the confirmation process? No, not as a practical matter.

As a practical matter, a very popular president might well receive more deference than an unpopular president or a lame duck. The reason, of course, is that Senators might believe they have more to fear from bucking a president who is riding high than from a less popular one.

But the relevance of the margin of victory resides solely in the political calculations of pragmatic Senators, not in any imperative to heed the will of a victorious president. A Senator would be fully justified in rejecting a nominee he or she considers unfit even if the president is riding high.

It’s also worth remembering that presidential popularity is fleeting. George H.W. Bush was elected by a margin that approached landslide proportions. After winning the first Gulf War in early 1991, his approval rating was through the roof. Yet, by early 1992, his chances of being reelected were slim.

Trump was an unpopular president. Maybe this time will be different. Or maybe he will impose high tariffs that will lead to greater inflation than that which plagued Joe Biden. How popular Trump will be a year from now is anyone’s guess.

In addition, as Erick Erickson has pointed out, Republicans just elected or reelected to the Senate will not run for reelection while Trump is in office. Another large number of GOP Senators will have four years to rebuild bridges before they face the electorate. And some elderly members of the caucus whose term is up in 2026 may step down. Meanwhile, Trump is heading toward lame-duck status.

In sum, President Trump does have a mandate, but having one does not mean Senators, who also have a mandate, should feel constrained in exercising their “advise and consent “role. Senators should, though, grant some deference to Trump’s nominees. But neither the magnitude of his victory nor the likely state of play going forward militates in favor of being more deferential (or less deferential) than normal.