Over the next month, the New York Times will release a six-part series on “the sweeping change that President Obama brought to the nation, and how the presidency changed him.” Part I focuses on Obama as the regulator in chief. I encourage you to read the entire piece, as it is thorough compilation of many of the themes I’ve developed since this blog launched in 2009. But I want to draw attention to one paragraph that embodies the largest misconceptions about our age of gridlocked government.
The new rules built on the legislative victories Mr. Obama won during his first two years in office. Those laws — the Affordable Care Act, the Dodd-Frank Act and the $800 billion economic stimulus package — transformed the nation’s health care system, curbed the ambitions of the big banks and injected financial support into a creaky economy. But as Republicans increased their control of Capitol Hill, Mr. Obama’s deep frustration with congressional opposition led to a new approach: He gradually embraced a president’s power to act unilaterally.
What’s wrong with this passage? This sentiment has been repeated so many times that it must be true, right? The conventional narrative is wrong. For starters, the authors write “Republicans increased their control of Capitol Hill” as if there was some sort of hostile invasion. Rather, every year the President was in office, Democrats lost control of federal and state offices nationwide. The President’s policies were rejected the electorate. The only reason why Dodd-Frank and the ACA could pass was due to the sixty-vote bloc in the Senate. Since Democrats lost the filibuster-proof majority in the Senate, the President’s legislative agenda has gone nowhere. And that’s why the President has had to turn to executive power. The Times offered this quote which sums up the dynamics quite well.
“It’s certainly true that we learned by about the third year that the answer to every challenge isn’t going to be legislative,” said Cecilia Muñoz, now director of Mr. Obama’s Domestic Policy Council.
This is largely the theme of my forthcoming piece in the Harvard Law Review, Gridlock.
But there is another cost to using executive action as a countermeasure to gridlock–it stultifies that intransigence. Here is a preview of the Epilogue of Unraveled:
Beyond forgoing opportunities to advance other legislative agendas – such as immigration or environmental reform – the decision to force the ACA on a party-line vote was a contributing factor to the stultifying gridlock during the final six years of the Obama presidency. The “one-term president” com- ment was indeed made by Senator Mitch McConnell, but not in early 2009. Rather, he said it on the eve of the midterm elections in October 2010, six months after the ACA passed. McConnell linked his opposition to Obama’s re-election with the GOP’s goal of eliminating Obamacare. “If our primary legislative goals are to repeal and replace the health [care] bill,” he said, “the only way to do all these things it is to put someone in the White House who won’t veto any of these things.”
In July 2016, President Obama lamented the “hyperpartisanship” surrounding healthcare reform. He wrote that “through inadequate funding, opposition to routine technical corrections, excessive oversight, and relent- less litigation, Republicans undermined ACA implementation efforts.”7 The President’s criticism is well-founded, but ignores his own role in institutionalizing this gridlock. It was hubristic to think that after enacting a monumental law, without any bipartisan buy-in, opponents would simply fall in line. As history played out, Republicans had no problem undermining a law they had no part in enacting and felt no attachment to. Senator Max Baucus, chairman of the Finance Committee that drafted the healthcare bill, “fret[ted]” about the ACA’s origin. “It is my belief,” he said in December 2013, “that for major legislation to be durable, sustainable, it has to be bipartisan. I mean, one party can’t jam legislation down the other party’s throat. It leaves a bitter taste.”8
The article closes with a quote from then-Professor Elena Kagan:
“We live in an era of presidential administration,” Elena Kagan, a Harvard law professor since appointed by Mr. Obama to the Supreme Court, wrote in a 2001 paper that reviewed the expansion of the regulatory state.
Both Mrs. Clinton and Mr. Trump would most likely face significant congressional opposition to their major campaign promises. To sidestep Congress, they now have the legacy of Mr. Obama. Mr. Podesta, now Mrs. Clinton’s campaign chairman, said the appeal of taking action without Congress is hard to resist.
My next article, which should be ready by the end of this month, challenges the core of Kagan’s article that courts should give greater deference to actions undertaken by high-level executive branch officials. I contend at a minimum, such actions are not entitled to more deference, and in reality, should warrant greater skepticism. It is titled, Presidential Maladministration.