Donald Trump has no “mandate”

We should keep clear a critical point that the press is so sloppily ignoring.

Donald Trump is our President. Despite failing to win the popular vote, he is our President. Other Presidents have served as President despite not winning the popular vote — after an election (JQ Adams, RB Hayes, B Harrison, GW Bush) or after death in office, resignations, or assassinations (John Tyler, Millard Fillmore, Calvin Coolidge, Harry Truman, Gerald Ford, Lyndon Johnson, Teddy Roosevelt, Chester Arthur, Andrew Johnson). What those Presidents had is the constitutional entitlement to serve, subject to the constraints of the Constitution.

But what Donald Trump doesn’t have is any democratic mandate for his policies. He did not win a majority of the popular vote. Neither a majority nor even a plurality of the voters stood with him. And while his party controls Congress, he is not Congress. He is a minority President, who ought to be working to lead a nation the majority of whom don’t share his policies.

No doubt, as a President, he is entitled to work to get Congress to ratify whatever policies he wants. But Congress is the policy maker in chief, not the President. And to the extent historically we have seen Presidents act as policy maker in chief, it is only after those Presidents have won presidential elections decisively: FDR and Reagan, in particular.

This is why the Right’s comparing the resistance to Trump to the resistance of Obama is so absurd. Obama won decisively — in the College, and in the popular vote. His party took Congress too. Yet after he was elected, he took his programs to Congress. Obamacare was a law passed by Congress. Dodd-Frank was a law passed by Congress. The stimulus was a law passed by Congress.

No doubt, over time, in the face of studied and pathological resistance by Congress, Obama embraced the executive order more and more. Republicans opposed that. They should remind themselves of that opposition, as they stand-by, pathetically, and watch Vladimir Trump become our diktat-maker in chief.

George Washington was right: Party over country will kill this Republic. Unless we can get Congress to wakeup.

Written by

law professor, activist.

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