Authors: John Yoo
Tags: #History: American, #USA, #U.S. President, #Constitution: government & the state, #Constitutions, #Government, #Executive Branch, #Executive power - United States - History, #Constitutional & administrative law, #Law, #Constitutional history, #United States History (Specific Aspects), #Constitutional, #United States, #Presidents & Heads of State, #POLITICAL SCIENCE, #Legal status, #Executive power, #History, #Constitutional history - United States, #History of the Americas, #United States - General, #Presidents, #National Law: Professional, #Political History, #General, #History - U.S., #Presidents - Legal status, #etc - United States - History, #Biography & Autobiography, #Government - Executive Branch, #etc., #laws
Current economic woes have brought comparisons with the Great Depression. FDR presents a worthy model of a Presidency more institutionally independent of Congress and more liberated from the political parties than ever before. Using every constitutional authority of the Presidency, FDR brought unprecedented leadership to the legislative process and led the nation through World War II. But Obama may make a fundamental mistake if he believes that he enjoys a mandate like FDR's. We still live in the era of Reagan -- Obama himself campaigned on a platform of tax cuts and deficit reduction.
12
Any regulation of the financial system will be driven by a panicked response to the collapse of the credit markets, not a new philosophical dedication to an activist state. Obama may propose new spending on infrastructure, but only to stimulate the economy out of a recession, not because the American people have a newfound love of bigger federal government. Obama asked for a massive stimulus program in the first weeks after taking office "not because I believe in bigger government -- I don't."
13
To take just one sign that the election may not have ushered in a new political consensus, California voted for Obama by an amazing 61-37 percent.
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But the bluest of blue states also prohibited samesex marriage by 5 percent, enacted a crime victims' rights initiative by 7 percent, and defeated a proposal to limit minors' free access to abortions by only 4 percent.
15
Obama himself opposed gay marriage during the campaign
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and called for the Supreme Court to overrule its decision banning the death penalty for child rapists.
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Obama would be better served by moving swiftly to cure the recession and then focus on moderate, bipartisan policies in areas such as education, spending, and entitlement reform. He might even pick a fight or two with a Congress that moves too far and too fast to nationalize health care or interfere with the free market. His picks of Hillary Clinton for Secretary of State and General James Jones as National Security Adviser, along with his decision to keep Robert Gates as Secretary of Defense, signal that he sees the virtues of a pragmatic foreign policy. Drawing down American forces in Iraq on the same timetable set by the Bush administration, and even increasing combat forces in Afghanistan, suggests that Obama intends no radical departures from national policy in these vital arenas.
18
While the new President has made diplomatic overtures to Iran and North Korea, these nations have shown no long-term desire to reach a permanent settlement of tensions with the United States.
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If his feelers are rebuffed, Obama may well have to pursue the same policies as his predecessors toward these rogue nations. The realities of international power politics do not change on the timetable of American elections.
While avoiding the Scylla of overconfidence in his mandate, Obama almost must skirt the Charybdis of Congress. His victory over Hillary Clinton in the Democratic primaries raised the possibility that he might be beholden to congressional leaders, many of whom have decades more experience in Washington. One of the least understood aspects of the Democrats' primary system was the extraordinary role of the "superdelegates." Neither Obama nor Clinton could win their party's nomination through the allocation of delegates by direct election, because 795 superdelegates, all party insiders, held votes at the convention, far more than any one state. The important Pennsylvania primary on April 22, 2008, for instance, had only 158 delegates at stake.
20
Due to the closeness of the popular vote, the real battlefield in the Clinton-Obama contest moved from the voting booth to the superdelegates.
Democratic primary reforms in 1982 gave superdelegates about 20 percent of convention votes -- precisely so that party graybeards could stop a popular, but politically extreme, candidate from seizing the nomination.
21
The Democrats deliberately rejiggered the rules to head off insurgent candidates like a George McGovern or a Jimmy Carter who might be crushed in the general election. Congressmen and other party leaders have more than twice the votes of the richest state prize, California.
22
If the popular vote is close, as it was in 2008, the superdelegate rules effectively give congressional incumbents a veto over the nomination.
The Framers did not envision this delegate dissonance. As we have seen, they believed that letting Congress choose the President was a dreadful idea. Without direct election by the people, the executive would lose its independence and vigor and become a mere servant of the legislature. They had the record of revolutionary America to go on. Recall Gouverneur Morris's explanation: if Congress picked the President, he "will not be independent of it; and if not independent, usurpation and tyranny on the part of the Legislature will be the consequence." Choosing the President would result from the "work of intrigue, of cabal, and of faction."
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After weeks of debate, the Framers vested the Presidency with its own base of popular support by establishing a national election, so the President could represent the views of the entire people, not the wishes of Congress.
They kept the same rule when considering presidential reelection. Alexander Hamilton wrote in
Federalist 68
"that the executive should be independent for his continuance in office on all, but the people themselves," for otherwise, the President might "be tempted to sacrifice his duty to his complaisance for those whose favor was necessary to the duration of his official consequence."
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The Framers were deeply concerned that a President chosen by Congress would keep his eye only on the happiness of legislators, turning our government into a parliamentary system like those of Europe today.
The Framers were right to worry. The Clinton and Obama campaigns competed hard to win superdelegates. No one knows whether members of Congress cut deals for themselves and their constituents in exchange for their vote, but it would have been difficult to resist. A water project here, some pet legislation there -- surely such details were worth the Democratic nomination. Lose, and the candidate pays nothing. Win, and a Presidency is gained. Like shareholders deciding whether to sell in a tender offer, superdelegates would have bargained ferociously until the moment that the nominee secured a delegate majority. As the Democratic convention approached, the demand for superdelegates would have escalated, with the choice of the nominee becoming increasingly the work of political intrigue, inside deals, and power struggles among interest groups, just as the Framers feared.
The concern is that any nominee, not just Obama, who survived this process will come to the Presidency weighed down by dozens, if not hundreds, of commitments. Some may welcome such a development. Some students of American politics argue that the President and Congress should work more closely together, and may well prefer a President who obeyed congressional wishes. But as we have seen, the historical record is not heartening. During the reign of the Jeffersonians, the congressional caucus chose the party's nominee. It yielded mediocrity, even danger. James Madison deferred as Congress drove the nation into the disastrous War of 1812, which ended with a stalemate in Canada and the capture and torching of the U.S. capital.
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"King Caucus" finally broke down when the system reached a peak of "cabal, intrigue, and faction" in the 1824 election, with Clay throwing the election in the House to Adams, allegedly in exchange for the post of Secretary of State. Jackson spent the next four years successfully attacking the legitimacy of the Adams administration and won his revenge in the election of 1828.
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It is unlikely that a candidate today would trade something as important as a cabinet post for a superdelegate's vote. But the election of 1824 ought to caution against allowing congressional leaders to play such a large role in choosing the President. Obama has advanced an ambitious domestic agenda, including an overhaul of national financial regulation, a national health care plan, large equity stakes in the banking and industrial sectors, and a huge economic stimulus. These are areas where the Constitution gives the legislature the primary authority, and where political scientists predict that members of Congress will have the greatest incentive to send money back to home districts or to favor political supporters at the expense of the public interest.
27
Obama would fulfill the role set out for him by the Framers by checking Congress's instinct to overregulate and hand out benefits to interest groups, rather than asking for stimulus bills and letting Congress fill in the details. The mode of his primary selection, however, will make it difficult for him to oppose the congressional leaders of his own party. That electoral system echoes failed models from the American past and threatens to sap the Presidency of its independence and authority by turning it into the handmaiden of Congress, instead of the choice of the American people.
Obama might be hampered by his origins as a member of Congress or his lack of executive experience. During the 2008 elections, John McCain accused Obama of lacking the maturity and experience to serve as President. The Obama-Biden campaign returned the same fire on Sarah Palin, who had been governor of Alaska for only two years and before that was mayor of tiny Wasilla, Alaska, and chair of the state oil and gas commission.
Because Obama's rise to the Presidency was truly meteoric, he avoided the legislative record that has doomed numerous presidential candidates from Bob Dole to John Kerry. Only three sitting Senators -- Warren Harding, Kennedy, and now Obama -- have ever been elected directly to the Presidency. In fact, Obama's lack of experience might have little impact on his success. Lincoln only won election to a single term in the House, and shot to fame by losing to Douglas in the 1858 Illinois Senate race. But that did not prevent him from becoming our greatest President. His predecessor, by contrast, had one of the most sterling resumes ever assembled by an occupant of the White House. James Buchanan had served as a member of the House for a decade, ambassador to Russia and Great Britain, a two-term Senator, and Secretary of State in the Polk administration.
28
Yet, scholars agree that Buchanan was the worst chief executive in American history because he did nothing to stop the South from leaving the Union.
History does not show any obvious link between experience and a President's effectiveness during times of crisis. Many of our worst performers in the office would have won the title of most qualified. James Madison wrote the first draft of the Constitution, coauthored
The Federalist Papers
, served in the House during the First Congress, cofounded the Jeffersonian party, and served as Secretary of State for two terms under Jefferson. He also allowed the nation to rush into an ill-advised war that saw Washington, D.C., conquered and burned and the nation itself almost dismembered.
29
Franklin Pierce served in both the House and Senate before serving as President from 1853-57, but a rigorous survey of scholars ranked him 38th out of 40 Presidents.
30
Andrew Johnson, who had been a member of the House and Senate, governor of Tennessee, and Vice President, came in at 37th for prompting impeachment by opposing Reconstruction.
31
Millard Fillmore, who checks in right before Johnson, had been Vice President, a member of the House, and a New York official before his Presidency from 1850-53.
32
The lack of correlation between experience and effectiveness is not merely a lesson from some far-off age in American history. Richard Nixon was one of our most qualified presidents, serving as Vice President and as a California Senator and Representative. He covered up Watergate, risked impeachment, and resigned from office.
33
Extensive government experience does not bring any special ability to use presidential power to respond to crises. Herbert Hoover had been Secretary of Commerce and was known as the "Great Engineer" for his engineering company and his organization of the postwar relief effort in Europe.
34
He could do little to end the Great Depression. Woodrow Wilson had been president of Princeton University, governor of New Jersey, and the finest American political scientist of his day.
35
His failure over the Treaty of Versailles sparked a deep isolationism that ended only with the Japanese attack at Pearl Harbor.
Experience, no doubt, can help Presidents. Jefferson, Jackson, the two Roosevelts, and Eisenhower were prominent politicians, administrators, and soldiers before assuming the country's highest office. Jimmy Carter's inexperience -- he had served only one term as governor of Georgia -- left him unprepared for stagflation and the Iranian revolution. But experience is not a magic ingredient that can substitute for other important qualities. Electing candidates only because of their experience or charisma denies them a true mandate. A vote for ideology over experience produced the Reagan Revolution. Love him or hate him, Reagan's unerring commitment to a few simple principles -- free markets, low taxes, and aggressive anti-communism -- proved more critical to success than a long resume.
The Framers invented the Presidency to ensure that government possessed the "decision, activity, secrecy, and dispatch" to lead the nation through the unforeseen circumstances of emergency, crisis, and war.
36
Judgment, character, and political principles, not how long he or she served on the Senate Foreign Relations Committee, will determine a President's success in acting swiftly and decisively. Congressional experience provides little preparation for executive office. The legislative mind-set favors discussion over decision, deliberation over speed, and consensus over determination. Most of our greatest Presidents spent little to no time in Congress. In fact, our best modern executives have defined themselves through their opposition to Congress, not their deference.