by Chris Morran, propublica.org
Jan. 27, 2021
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Donald Trump was elected president in 2016 following a campaign of pledges to build a wall along the border with Mexico, repeal and replace his predecessor’s signature health care legislation, “drain the swamp” of special interests in Washington, D.C., and cut through the federal government’s bureaucracy, all to “Make America Great Again.”
Trump ultimately fell short on many of his signature promises, but his administration’s successes in cutting taxes, rolling back regulations and reshaping the judiciary will cast a long shadow, with the national debt reaching historic highs, weakened federal agencies and conservative judges who will remain in position for decades.
President Joe Biden has begun undoing some inherited policies via executive orders, yet much of what the new administration ultimately hopes to achieve cannot be accomplished by presidential fiat. Like Trump when he was reversing Obama-era regulations, Biden will need cooperation from Congress, including compromises with at least some Republicans in the Senate, to enact significant swaths of his agenda, and he faces a ticking clock to undo some of Trump’s “midnight” rules.
Here are some of the most important ways Trump changed Washington and the federal government:
Renovating the Swamp
From the start of his term, Trump staffed his administration with lobbyists — hundreds of them, by our count — some of whom remain in career positions. He signed an executive order on ethics that was supposed to bar his political appointees from lobbying their former agencies for five years after they left government, though ProPublica found in 2018 that the order was not being enforced. Then, one of his final acts as president was to rescind that order, calling into question whether the swamp was drained or if Trump had built a yacht club along its murky waters.
Trump’s deregulatory successes left some federal agencies understaffed, underfunded and unable to function properly, as demonstrated by his administration’s botched response to the 2020 coronavirus pandemic. Even if Biden is able to restaff and Congress allocates the money to restore slashed budgets, it will take years to reverse rules put in place by Trump.
Biden has set about trying to reverse at least some of Trump’s actions that rolled back the rights of LGBTQ Americans, like the military’s ban on transgender service members, and a 2020 “conscience rule” that helped to shield federally funded health care providers who refused to provide services on religious or moral grounds.
The new administration will almost certainly have to employ one of the tools Trump used to halt or undo former President Barack Obama’s regulations: a little-known law called the Congressional Review Act.
The law, passed in 1996 by a GOP majority in the House, which was led by Speaker Newt Gingrich, gave Congress the ability to pass a simple resolution of disapproval and thereby reject any new major regulation implemented by a president. It also permanently prevents these voided regulations from being resurrected in any similar form without a subsequent act of Congress. In the two decades after it was enacted, the CRA was only used successfully once.
Then came Trump.
His 2016 election resulted in a flood of regulatory rollbacks — 15 in the first year of his term alone.
Now that the Congressional Review Act has been established as a political power tool, Biden and a Democratic-led House and Senate will likely use it to repeal as many of the Trump administration’s midnight regulations as they possibly can in the limited window of time available to them.
ProPublica tracked more than 75 such regulations from Trump’s final months in office, at least 50 of which were finalized before Biden’s inauguration.
Remaking the Court
Among federal institutions, the judicial branch will remain in Trump’s shadow the longest. The one-term president was responsible for installing more than 225 federal judges and three Supreme Court justices to lifetime appointments. A ProPublica analysis highlighted the relative youth of Trump’s judicial appointments. Given the age of many of these judges, they are likely to remain in their positions for 30 years or more before retiring.
The Senate’s then-majority leader, Mitch McConnell, handed Trump a gift by refusing to hold hearings in 2016 for Obama’s nominee to fill a Supreme Court vacancy. In April 2017, that seat was filled by Neil Gorsuch, who, at age 49, was the youngest justice on the court.
The subsequent appointments of Brett Kavanaugh (53 when confirmed) and Amy Coney Barrett (47 when confirmed) made clear Trump’s goal of placing young, deeply conservative justices into lifetime appointments.
According to a ProPublica analysis, all three Trump-appointed justices could remain with the court until 2050 or beyond by simply staying through or slightly beyond the average age of retirement for the court.
Trump’s relative success with Supreme Court nominations was only part of the GOP strategy to remake the federal courts. McConnell and Republican leadership deliberately held back on confirming Obama’s judge nominations in hopes of the White House changing parties after 2016. In his last two years in office, Obama only saw two of his appellate nominees confirmed to the bench. By contrast, Trump seated a cavalcade of judges during his term — 19 appeals court spots and nearly 50 U.S. district court judges in 2018 alone.
In one four-year term, Trump placed 54 judges in federal appellate courts, and seated 174 district court judges. By contrast, Obama and former President George W. Bush seated 55 and 62 appellate judges, respectively, over the course of their eight-year stays in office.
Following the death of liberal Supreme Court Justice Ruth Bader Ginsburg in 2020, the issue of “packing the court” by adding more justices became a talking point for both progressives who supported the idea and for Trump, who claimed Biden would use the strategy to change the court’s ideological balance. However, Biden has not publicly supported this idea, and it would be unlikely to succeed in Congress.
The Constitution prescribes no specific number of justices for the Supreme Court, which over the years has had as few as six justices and as many as 10. The current nine-justice court was established in 1869, though there have been multiple proposals to expand the court, most notably in 1937, when President Franklin D. Roosevelt made a failed plan to expand the Supreme Court to as many as 15 justices.
The Democrats’ win of both Georgia Senate seats in January means Biden should be able to fill vacancies in the judiciary, with Republicans unable to block hearings and Vice President Kamala Harris acting as the tiebreaker for any 50-50 confirmation votes. However, finding nominees that satisfy all 48 Democrats and the 2 independents who caucus with them may prove to be a challenge.
There is also the question of how many Supreme Court seats Biden will have the opportunity to fill. Stephen Breyer is the only justice currently above the typical retirement age. Justice Clarence Thomas, the longest tenured of the nine, is 72. According to the ProPublica analysis, if he stays on the bench through typical retirement age, he would remain in place through 2029.
Long-tenured district and appellate court judges who meet specific age and experience requirements can declare “senior” status, which allows for their seats to be filled by the president while they continue working. There are currently dozens of judges eligible for this designation. On Inauguration Day, District Court Judge Victoria Roberts of Michigan’s Eastern District announced her intention to transition into senior status. It remains to be seen how many others will choose this path.
A Win for the Wealthy, a Loss for the Uninsured
Even though Trump began his term with Republicans in control of both chambers, the GOP was unable to pass major bills on issues like immigration and abortion because it couldn’t get the 60 votes it needed to end debate in the Senate and get to a final vote. The two signature Trump legislative efforts — on health care and tax cuts — were expedited by using the budget reconciliation process, which limits what can be put into the legislation but means the bill is not subject to a cloture vote.
In his public remarks, Trump sold the Republicans’ 2017 tax reforms as mainly benefiting the middle class and creating jobs.
Yet the new tax law’s cap on deductions for state and local taxes, along with the elimination of some mortgage deductions, resulted in a trillion-dollar drop in overall home values nationwide — “a very big deal to families whose biggest financial asset is the equity they have in their homes,” wrote ProPublica’s Allan Sloan.
ProPublica has reported on a number of ways in which the 2017 tax cuts benefited America’s wealthiest, including some Trump appointees. Similarly, the plan’s Opportunity Zone tax breaks, which were purportedly intended to spur investment in lower-income neighborhoods, have repeatedly gone to billionaire investors and developers for projects that were not new or are of dubious value, like a Florida superyacht marina.
Critics warned the cuts would raise the national debt, which then stood at around $20 trillion. Trump insisted otherwise, telling Fox News’ Sean Hannity in 2018 that when the bill “really kicks in, we’ll start paying off that debt like it’s water.”
Despite Trump’s pledge that the revenue lost from the tax cuts would be recouped by tariffs and increased productivity, the national debt continued to rise, even before the COVID-19 pandemic. The $1.563 trillion budget deficit from 2019 was higher than it had been in all but one year under the Obama administration, which spent $1.652 trillion in 2010 in an effort to end the economic downturn that resulted from the crash of the housing market. More than a year after signing the tax law, Trump’s own White House referred to the then-$22 trillion national debt as a “grave threat to our economic and societal prosperity.”
Then the coronavirus hit, requiring trillions of additional dollars in spending to keep Americans working, fed and in their homes. As of Dec. 31, 2020, the national debt stood at $27.75 trillion, up 39% from $19.95 trillion four years earlier and at its highest level relative to our economy since the end of World War II.
During the 2020 campaign, Biden proposed income tax increases on individuals earning more than $400,000 annually, repealing the cap on state and local tax deductions, and raising the corporate tax rate from 21% to 28%, splitting the difference between Trump’s level and the 35% rate that was in place before 2017.
As experts have noted, the new president may face an uphill battle trying to sell any tax hike while the economy remains troubled. While the Democratic Party now controls both chambers of Congress, Biden cannot afford even a single defector in the Senate if he hopes to succeed there. Additionally, Biden hopes to push through a $1.9 trillion stimulus package in the early part of 2021, which will further inflate the debt.
On the day of his inauguration in 2017, Trump signed Executive Order 13765, instructing the Secretary of Health and Human Services and the heads of other relevant federal bodies to try to “waive, defer, grant exemptions from, or delay the implementation” of any part of the Affordable Care Act if they deemed that it “would impose a fiscal burden on any State or a cost, fee, tax, penalty, or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications.”
The order was a clear indication of the administration’s determination to undermine Obamacare, which had helped an estimated 20 million people get health insurance during its first two years.
While the House passed its version of a health care plan, dubbed the American Health Care Act, in May 2017, what followed was a series of failed attempts to craft a Senate version of the bill. The process came to an end in July 2017 with the Health Care Freedom Act, dubbed a “skinny repeal” bill with no real replacement plan. That too failed in the Senate, when Sen. John McCain of Arizona, with a now-famous thumbs-down gesture, joined fellow Republican Sens. Lisa Murkowski of Alaska and Susan Collins of Maine and all Democrats in voting “no.”
The closest Trump would come to repealing the ACA came later in 2017, when — as part of the Republican tax bill — he effectively negated the individual mandate, which required individuals to carry a minimum level of healthcare coverage or face an annual penalty of up to $695; the tax bill reduced the amount of that penalty to $0. The Trump administration also cut back on marketing for the ACA’s open enrollment periods and expanded the availability of short-term limited-duration insurance policies, which are generally less expensive than those that meet ACA requirements but offer fewer protections, particularly for preexisting conditions. Despite repeated promises from the president that a true ACA replacement was in the offing, it never materialized.
Though Obama’s legislation remains on the books, its initial surge in coverage numbers began to reverse itself after 2017. According to a 2020 Kaiser Family Foundation report, there were 28.9 million uninsured nonelderly Americans by the end of 2019, an increase of 2.2 million since the beginning of 2017, with the number expected to continue rising in 2020 due to the historic levels of unemployment resulting from pandemic-related layoffs and closings.
In addition to resulting in more uninsured Americans, the Obamacare repeal campaign set the tone of bluster, partisanship and misinformation that would come to define many aspects of the Trump years. As ProPublica reported in May 2017, backers of the repeal legislation had engaged in a campaign of inaccurate information, misleading euphemisms and a curated online discussion bubble in which members of Congress blocked critical comments from their constituents.
Biden and the new Democratic-led Congress could reinstate the individual mandate, but financial penalties for uninsured Americans will be difficult for the White House and legislators to sell to a public living through mass unemployment. Rather, as part of his $1.9 trillion COVID-19 relief package, the new president hopes to maintain insurance rolls by increasing the value of the Premium Tax Credit — a refundable credit that helps eligible taxpayers afford insurance coverage — so that their net cost of insurance premiums is no more than 8.5% of an individual’s yearly income.
The new White House will face pressure from within its own party as progressive Democrats push to replace traditional insurance plans with a single-payer “Medicare for All” plan. Support for this concept is increasing among the general public. According to a September 2020 report from Pew Research, 63% of Americans support at least some mix of government and private insurance plans, up 4 percentage points from the previous year. Support for a single national government program was up 6 percentage points year-over-year, rising from 30% to 36%. During the campaign, Biden did not push for a Medicare for All plan, but rather for expansion of the ACA marketplace via the “public option,” meaning government-run insurance plans that would compete with private insurers.
In early 2018, with nothing to show for his campaign promises and no indication that Mexico wanted any involvement in funding the border wall, Trump floated to then-Defense Secretary James Mattis the idea of using money earmarked for the armed forces to build it.
It would be nearly a year before Trump moved forward with this plan, setting off a slew of legal challenges, some involving the Supreme Court. Opponents said Trump did not have the authority to reallocate billions of congressionally appropriated military funds. The standoff over money for the wall resulted in the longest shutdown in U.S. government history. Congress, now with a Democratic majority in the House, eventually agreed to give Trump part of what he requested, but with some restrictions. The president was also allowed to use billions that had previously been allocated for the military’s counter-narcotics efforts.
After construction on the wall finally began in earnest, a ProPublica/Texas Tribune investigation found that costs for the structure were running significantly higher than expected. For example, the Army Corps of Engineers issued two contracts worth $788 million for construction of one 83-mile stretch of wall. In less than a year, the value of those contracts increased by more than $1 billion. Within a year, after the length of the wall segments in those contracts was extended by 63% to 135 miles, the total cost more than tripled to $3 billion. ProPublica and the Tribune found multiple instances where the value of border wall contracts was increased through the use of supplemental contracts without any competitive bidding.
While more than 400 miles of wall were constructed by the end of Trump’s term, only about 80 miles involved building a barrier where none had existed before, according to newsreports. The Washington Post reported that Biden may be obligated to build more than 200 additional miles of wall.
On his first day in office, Biden issued an executive order describing the wall as a “waste of money that diverts attention from genuine threats to our homeland security.” The order pauses construction and spending on the wall “to the extent permitted by law,” leaving open the possibility that construction could continue or that money will continue to be spent on the project. Our investigation confirmed that some wall contracts come with hefty termination fees. One agreement stipulates a cancellation fee of nearly $15 million.
The Erosion of Trust
The legacy of the Trump administration will be one of erosion, both of norms and of trust in government. Arguably the strongest example is Trump’s yearslong campaign to convince the American people that their elections are not secure.
Trump became president by winning the electoral college in 2016, but he repeatedly insisted without evidence that he’d only lost the popular vote to Democratic candidate Hillary Clinton because of widespread election fraud.
“I won the popular vote if you deduct the millions of people who voted illegally,” Trump tweeted on Nov. 27, 2016, despite all evidence to the contrary. The next day, he added, “Serious voter fraud in Virginia, New Hampshire and California – so why isn’t the media reporting on this? Serious bias – big problem!” Again, his claims were not backed up by the facts.
His zeal for the voter fraud myth did not cool after taking office. A May 11, 2017, executive order created the Presidential Advisory Commission on Election Integrity to investigate, among other things, issues “that could lead to improper voter registrations and improper voting, including fraudulent voter registrations and fraudulent voting.”
In the end, the commission only met three times before Trump summarily dissolved it in January 2018, amid internecine legal squabbles and other troubles. Though the administration said the Department of Homeland Security would continue the commission’s work, the Trump White House never unearthed any actual evidence of substantial voter fraud.
The commission was a failure, but it thrust members like Hans von Spakovsky into the spotlight. Von Spakovsky, a prominent purveyor of discredited voter fraud claims, would go on to become a central figure in some Republican efforts to restrict mail-in and early voting during the 2020 election.
As Trump and his surrogates stoked unfounded fears of dead people and undocumented migrants voting, Americans grew concerned about interference in elections. A Gallup poll released in early 2020 found that nearly 3 in 5 Americans no longer had confidence in the election process, an inversion from only a decade earlier when that same poll found that almost 3 in 5 Americans were confident in the integrity of their elections.
With the 2020 election drawing near, Trump preemptively claimed that if he lost on Election Day it would have to be the result of fraud.
“The Democrats are also trying to rig the election by sending tens of millions of ballots using the China virus as the excuse for allowing people not to go to the polls,” Trump said during a June 2020 campaign event in Phoenix, Arizona. He later predicted, “This will be, in my opinion, the most corrupt election in the history of our country, and we cannot let this happen.”
The volume of ominous statements from Trump soared in the weeks leading up to the November election. According to The Washington Post’s tally of Trump’s false and misleading claims, the president made more than 1,500 such statements about the election between July 1 and Nov. 2, 2020.
Even after Trump’s legal team and his unofficial legal supporters failed more than 60 times to convince courts to overturn election results in multiple states, and after the Jan. 6 Stop the Steal rally escalated into an insurrection at the Capitol that left at least five people dead, a large number of Americans still believe in the fiction of a stolen election.
According to a CNN/SSRS poll taken after the violence at the Capitol, 32% of Americans said they think Biden did not legitimately win the election. Nearly one-quarter of all respondents believe there is “solid evidence” that Biden actually lost. Three-quarters of Republican respondents said they had little or no confidence that elections reflect the will of American voters.
The 2020 election will not be the end of outrageous voter fraud myths. The longer-term effect is only just being seen, as state legislatures around the country reconvene for their new sessions, with a number of Republican-led assemblies already moving to restrict or repeal efforts to make voting easier.
In Pennsylvania, where most Republican lawmakers supported expanded mail-in voting even before the COVID-19 pandemic, the state Senate voted on its first day back to create a special committee to investigate election reforms.
“Far too many residents of Pennsylvania are questioning the validity of their votes or have doubt that the process was conducted fairly, securely and produced accurate results,” state Sen. Jake Corman, who had voted for the 2019 election reforms, said about the commission in December. His statement echoed an argument similar to that made by U.S. Sen. Ted Cruz on Jan. 6, only minutes before insurrectionists breached the Capitol.
Similarly, Minnesota state Sen. Scott Newman, a Republican, recently introduced a bill to require photo identification from voters. Like Corman, he did not cite any evidence of specific fraud that would merit ID checks, just stated that “millions of American citizens believe there was widespread fraud during the last election, and their loss of faith in the integrity of our election system alone justifies incorporating photo ID into our voting system.”
MAIN IMAGE SOURCE: President Donald Trump, carrying an umbrella, exits Air Force One at Joint Base Andrews in Maryland on Aug. 28, 2020. Credit:Doug Mills/The New York Times/Redux