Author Archive | Andrew Rudalevige

What’s Wrong with “What’s Wrong with Obama?”

(With apologies to Larry Bartels…)

Yesterday’s Politico story trumpeting (despite the question mark) “What’s Wrong with Obama?” is a great endorsement of William Howell’s recent book with David Brent, which argues that presidents seeking power should – to put it bluntly – shoot first and ask questions later. Obama is portrayed by Politico’s John Harris and Todd Purdum as far too attached to nuance, complexity, and deliberation (read: dithering) when “this president lately has faced situations that cried out for a black-and-white sense of purpose, and unquestioned public command.” As a result “his presidency is in a parlous state….”

The Politico take is certainly consonant with the various accusations of presidential weakness that have accompanied Obama’s policy maneuverings with regard to Syria. The pundits (some examples are here), plus politicians from left to right— Sen. Bernie Sanders to a collection of former Bush staffers —have certainly made their feelings clear on this point.

All this suggests Howell has a solid point when he argues that “in every policy domain, presidents must not only demonstrate involvement, they must act – and they must do so for all to see, visibly, forthrightly, and expediently. Deliberation must not substitute for action” (p. 6)….”Presidents who fail to act, even when the statutory or constitutional basis for action is dubious, face the prospect of a substantial political backlash…” (p. 105).  (It’s worth noting that Philip Heymann’s experimental work on foreign policy decisionmaking had similar findings, showing “the powerful tendency” – even among experts – “to follow an individual who is more certain rather than more deliberative” (Living the Policy Process, p. 141)).

Note that Howell’s book does not take a position on whether this is a good thing. I will: it’s not. Continue Reading →

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Battle for the CFL Championship

While the impending move to the Post will certainly improve The Monkey Cage’s sports coverage (go Sox!), the headline here is, naturally, a bait and switch. It does not refer to our Canadian footballing friends but to the venerable Constitution Fantasy League – where contestants receive points for the boldness of their own Constitutional fantasy (with a substantial bonus if they put it into practice and achieve what scholar Richard Pious called a “frontlash.”)

Those of you with Barack Obama on your CFL roster have been nervous ever since he went to Congress regarding the use of force in Syria and even noted that “it’s important for us to get out of the habit of just saying, well, we’ll let the President kind of stretch the boundaries of his authority as far as he can.”  It appeared that Rep. (and Pres.-wanna-be) Peter King was going to stretch his lead in this fall’s standings.

But Obama made a bold bid for a comeback in Sunday’s matchups, claiming that the House failing to exercise its legislative powers “changes the constitutional structure of this government entirely.”

The context was an interview with ABC’s George Stephanopoulos which pivoted from Syria to the upcoming budget battle(s) – remember that fiscal year 2014 begins on October 1, and Congress has once again failed miserably to pass anything like a budget for the new year, having failed miserably to pass one for the present fiscal year now almost complete or most recent fiscal years for that matter. Obama was asked about the statutory debt limit, and the House Republicans’ threat to link an increased debt limit to Democratic concessions over spending levels overall and the roll-out of Obamacare. Obama said “ I will not negotiate…on the debt ceiling,” and continued:

“If we continue to set a precedent in which a president, any president, a Republican president– a Democratic president– where the opposing party controls the House of Representatives– if– if that president is in a situation in which each time the United States is called upon to pay its bills– the other party can simply sit there and say, ‘Well, we’re not gonna put– pay the bills unless you give us what our– what we want,’ that changes the constitutional structure of this government entirely.”

The problem is that the “power of the purse” is one of Congress’s crucial and inalienable powers. James Madison noted in Federalist 58 that it represents “the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”  Even scholars such as past CFL champion John Yoo hold that the spending power is wholly legislative.

Now, defaulting on the full faith and credit of the United States is an idiotic idea. I can’t promote it as a “just and salutary measure.” But there are many members of Congress who think that reducing overall federal spending, and/or repealing the Affordable Care Act, are exactly that. The legislative power generally, and the power of the purse specifically, provides Congress leverage to make those kinds of bargains, or try to.  And using constitutional leverage does not change the constitutional structure of this government, even in part.

 

PS – One could argue that the debt ceiling is a separate process from the appropriations process (which is, of course, part of the problem, since debt issuance is tied to spending already passed into law.)  But both provide statutory guidance over the level of government spending, so I find it hard to separate out the debt limit from the power of the purse. Either way, how is one chamber failing to legislate something that changes the system? Bad policy outcomes – even really bad policy outcomes - reflect the challenges of operating within a separated system of checks and balances, rather than changing that system.

PPS – A reminder of a different argument about presidential power vis-à-vis the debt limit, from 2011 – I suspect we’ll be seeing this debate resurrected soon.

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The Media Pounds the President: Does it Matter?

President Obama’s speech on Syria has received mostly harsh grades from the media, as has his broader policy in the region so far: if I had a dime for every comment arguing (actually, mostly just stating) the scope of the damage done to Obama, to the presidency, to the United States, to the world, etc., from his handling of the Syrian situation I would have, well, many dimes. Peter Baker’s piece in today’s NY Times sums up the critics as seeing Obama as “feckles[s]…. reactive, defensive and profoundly challenged in standing up to a dangerous world.” In the blogosphere Stu Rothenberg says the Obama administration has been “confused, erratic and in way over its head,” “nothing short of sad,” “inept.”  Joe Klein goes further, calling it “one of the more stunning and inexplicable displays of presidential incompetence  that I’ve ever witnessed.” (Given that he was around to witness Bill Clinton deal with Haiti, this is saying something; but then Klein also manages to wax nostalgic for the heyday of Henry Kissinger.)  Even the more sympathetic Ezra Klein sums it up as “less George Kennan and more Mr. Magoo.”

So: how much should Obama worry about this?

At least one study suggests, not much. Jeffrey Cohen, in his 2008 book The Presidency in the Era of 24-Hour News, found that after the 1970s, “no correlation exists between the negativity of presidential news and public approval of the president.”  Before then – Cohen’s quite comprehensive data go back to the 1940s – there was indeed a strong connection, where a negative tone in press coverage was linked to lower approval. (Richard Brody finds this too in his earlier book on Assessing the President.)

Cohen suggests a number of reasons for this disconnect, tied to the broader structure of the “presidential news system”; I will condense them to two:

(1) in the pre-Watergate era, the press coverage of the president, and of government generally, was largely positive. Thus, negative news was a credible signal for the public to follow. When a Harry Truman, or Richard Nixon, attracted negative coverage, people assumed this meant something had changed they needed to take note of. Now, pretty much all coverage of the president is negative, so the public uncouples its sense of presidential performance from news coverage. (“The regularity of negative news makes it hard for the public to tell if the bad news reflects truly bad conditions that it should pay attention to or if it merely reflects the agenda of journalists,” broadly defined.)

(2) this is buttressed by the fragmentation of the media task from broadcasting to “narrowcasting,” thanks to the rise of cable/satellite/internet, etc., along with the shopping of the interested public for news and opinion framed to suit its preferred preconceptions (Obama is good, Obama is bad…): there is less “mass” in mass media, less trust in media generally, and fewer people likely to encounter evidence that would change their mind anyway.

It is of course nearly impossible to isolate the impact of the tone of coverage, especially in one short-term discrete case; how to keep all else equal when events are shifting rapidly (see Putin 2013)? Another twist in the current situation is that the new normal of polarization – where Dems express kneejerk approval, Republicans automatic disapproval, of the president – is complicated by the fact that some of Obama’s more reliable allies on the left are dead set against war in Syria and some in the GOP for it. Still, a quick glance at RealClearPolitics’ aggregation of presidential approval polls suggests they have held steady (the shift from Labor Day to today is from 43.8 to 43.5%). Whether approval itself matters… well, that’s a post for another time!

 

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A “Hands-Tied Presidency”? Refer to the syllabus…

A piece in the Sunday review section of the New York Times, “The Hands-Tied Presidency,”  argues that President Obama has discovered “he holds office at a time when the presidency itself has ceded much of its power and authority to Congress.”

Well… if received in my presidency course this thesis might receive the following kinds of comments:

(1) The idea that presidents have “ceded” power and authority to Congress? Surely most of it was Congress’s to begin with. Especially since the examples given in the paper—Newt Gingrich’s House, George W. Bush’s failure to win passage of his proposals for immigration or Social Security reform—are examples of legislators making legislative choices. Congress is, um, the legislative branch. It certainly is under no obligation to enact presidential requests into law. Indeed, it has a variety of powers even in national security areas.

The reading for the first day of class was the Constitution. Congress is Article I, and should be: its powers, when it chooses to use them, are immense. It was the framers’ first preoccupation. In Federalist 48 James Madison warned: “Where the legislative power is exercised by an assembly…it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions.” Thus, Congress was split into two chambers; and thus, in fact, was the rationale for a single executive in the first place, the better to have the strength to resist what Madison called the “impetuous vortex” of legislative power. Even so most presidential powers rely on Congress for activation, not the other way around. Continue Reading →

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Syria Authorization 2.0

News outlets including Roll Call’s #WGDB blog recently released the text of the Senate Foreign Relation Committee leadership’s draft authorizing military force in Syria. The draft, which will reportedly be marked up Wednesday, marks compromise language between Sens. Robert Menendez and Bob Corker. It begins with a long list of “whereas” clauses denouncing the ”abuses of the regime of Bashar al-Assad,” including “the brutal repression and war upon its own civilian population…. creating an unprecedented regional crisis and instability,” its “material breach of the laws of war” as well as the treaties and norms against chemical weapons declared by the United Nations, the U.S. Congress, and (for good measure) the Arab League.

Quick thoughts: The substance of the resolution is a collection of attempts to limit presidential discretion and at least one strange submission to it. Continue Reading →

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A Win for the WPR? No, but…

obama war cabinet syriaPresident Obama’s decision to seek congressional authorization for the use of force in Syria seems to have taken the political world by surprise. After all, when Obama intervened in Libya in 2011, he creatively evaded such an action, citing such rationales as UN resolutions, the “non-kinetic” nature of logistical support to NATO, and the proposition that the Libya operation did not constitute “hostilities” as envisioned in the 1973 War Powers Resolution. (For further details see my series of posts at the time, linked here.)  This time around, he has provided a draft resolution that even mentions the WPR.

The reaction shows the extent to which presidents have claimed—and Congress has abdicated— authority in this area, as I posted earlier today. The WPR has only been invoked formally once by a president (Ford, back in 1975).  There are many reasons for this, ranging from presidents’ claim of inherent war powers to the drafting imprecisions of the WPR itself. (On the latter, see my earlier summary here, and a longer discussion in a book chapter, here – go to Ch. 6, p. 192.)  No president—starting with Nixon, in his overridden veto message—has accepted the WPR as binding.

And nor did Obama, with respect to Syria. Continue Reading →

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Presidential Power and Congressional Cower

A few years ago, I wrote a book called The New Imperial Presidency, in which I built on ongoing events and new scholarship to trace the growth of presidential power after Watergate. I argued that this increased authority was both taken (by presidents) and given (by Congress). In short, ”The fact is that we have had an invisible Congress as much as an imperial President.”

Today’s New York Times provides the lead quote for the next edition of the book, courtesy of Rep. Peter King (R-NY), member of Congress for more than 20 years and former chair of the House Homeland Security Committee. To wit: “I strongly believe that the commander in chief has the absolute right to take military action.”

Assuming King meant just that, his strong beliefs are contrary to those who designed the American constitutional framework. For example, James Wilson—one of the key architects of Article II and “unity” (not unitary-ness…) in the executive—told the Pennsylvania ratifying convention on December 11, 1787, that “This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large: this declaration must be made with the concurrence of the House of Representatives…”

James Madison, writing as “Helvidius” in a series of letters attacking the Washington administration, piled on. “The received and the fundamental doctrine of the constitution,” he argued, is “that the power to declare war including the power of judging of the causes of war is fully and exclusively vested in the legislature: that the executive has no right, in any case to decide the question, whether there is or is not cause for declaring war.” (Emphasis in the original.) Indeed, “in no part of the constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department.”

A few years later, in a 1798 letter to Thomas Jefferson, Madison reiterated that “The constitution supposes, what the History of all Govts. demonstrates, that the Ex. is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legisl.”  A few years later, in turn, Jefferson told that Legisl in a December 1805 special message that “considering that Congress alone is constitutionally invested with the power of changing our condition from peace to war, I have thought it my duty to await their authority for using force in any degree which could be avoided.”

Now, the story is of course not so simple – we can argue about the definition of “war,” to start with, and President Jefferson himself was not always so considerate of legislative sensibilities and authorities. On the other hand, the Helvidius letters were prompted by Washington’s proclamation of American neutrality in the interminable Anglo-French conflicts - so about a decision not to go to war! even this, Madison argued, needed congressional sanction. (Which, in the end, was given.)

The point is that those framing this process as a presidential gift to be given have it backwards— even leaving aside the niceties of the law (the topic of my next post, stay tuned). A Congress with institutional pride (with ambition aiming to counteract ambition, in Madison’s famous turn of phrase in Federalist #51) would have acted on its own. Indeed, legislators who signed on to letters to Obama demanding that he reconvene Congress and ask for authorization were given credit for being assertive. Yet why were those letters written to Obama in the first place, and not to the House and Senate leadership?  If Obama’s decision yesterday made Congress slightly more visible, little credit for that appears to go to Congress itself.

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435 Separate Cuts; or, How I Spent My Summer Vacation

house recess 2013 coverThe House of Representatives’ Republican Conference has released instructions to its members on how to spend their summer vacations. It doesn’t involve much frivolity, unless one’s idea of holiday heaven involves writing (or at least cutting-and-pasting) op-eds, pumping gas, holding meetings with angry people and, most broadly, hating on Washington.

Kicking off the 31 colorful pages of  “Fighting Washington for All Americans”, GOP Conference Chair Rep. Cathy McMorris Rodgers (of Washington, as it happens) writes that “We should be proud of the work we’ve accomplished together so far in the 113th Congress…. The work we have accomplished in Congress is invaluable to those back in our districts.”  (Alas, only 12% of the public seems to realize this.)

The bulk of Fighting Washington consists of a long and detailed to-do list for the summer “district work period.” It gives members a sample op-ed to place in local papers, provides details on how to hold town hall meetings (hint: you should “reserve a space that is large enough to accommodate the expected number of attendees…” and “take many photographs and videos”), and suggests a list of issues members might hammer home at home: the economy, the excesses of Obamacare, the IRS.  (All the while remembering that “Fighting Washington isn’t about creating more partisan gridlock, heated rhetoric, or Republicans versus Democrats.”  Also that: “While touring, help constituents pump gas and bag their groceries where possible.”)

Now, here’s the thing. None of this is necessarily bad advice. But the people receiving it are incumbents and their staffs. Are they in fact people who need to be told to reserve a hall when holding a meeting? Congress scholars, help out here – is this level of instructional specificity new to the current crop of proud amateurs in the GOP caucus, or did the 1970s waves of newcomers (mostly Democratic then) receive similar orientation?

In the end the document serves as true homage to Richard Fenno and his 1978 book Home Style, in which he famously concluded that “members run for Congress, by running against Congress…”  But I wonder if we – and the House leadership – might do well to remember where he takes the thought: “Yet the institution bleeds from 435 separate cuts…”

 

PS According to Roll Call, Democrats too plan to spend the summer bashing Washington. So it is indeed 435 cuts, not 234…

 

 

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Too Hidden a Hand

Front CoverIt’s nice to see Peter Baker writing in today’s New York Times about alternate modes of presidential leadership – notably the “hidden hand” style utilized by Dwight D. Eisenhower. The idea is that Obama is exercising power from behind the scenes by exploiting personnel and process rather than from a bully pulpit. This is a more complimentary way to describe, albeit similar in practice to, “leading from behind.”

I’d like to correct one odd shortcoming of the article: it does not mention the 1982 book by Princeton’s legendary Fred Greenstein that put that phrase on the academic map. Greenstein’s The Hidden Hand Presidency seems to have been a victim of its own success in re-writing the academic conventional wisdom about Eisenhower and bringing its title into shorthand usage. (Perhaps it is the ‘xerox’ of presidential studies?)

Pre-Greenstein, scholars assumed that Eisenhower was too passive to be president – that he did not understand or exercise presidential power as Richard Neustadt had so memorably laid it out – Ike was no FDR! Afterwards, they were convinced “that behind Eisenhower’s seeming transcendence of politics was a vast amount of indirect, carefully concealed effort to exercise influence” (Greenstein, p. xx). Even Neustadt reassessed Eisenhower in a later edition of Presidential Power, in a chapter dealing with Eisenhower’s efforts to avoid American entanglement in French Indochina (aka Vietnam) in the 1950s. A direct contrast of Eisenhower’s tactics and advising structures in that arena with Lyndon Johnson’s a decade-plus later would become the basis for Greenstein’s later book with John Burke (along with Richard Immerman and Larry Berman), How Presidents Test Reality.

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The Perils of (Vague Delegations of) Power

Related (and complementary) to John’s earlier post

So why could the Obama administration collect data on – as it appears – pretty much every phone call you make? The answer seems to be a lesson in legislative drafting – since it resides in the wide grant of power Congress delegated to the administration in the Patriot Act (sorry, the USA PATRIOT Act: “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism”) originally passed in October 2001. (This is before we get to PRISM, which appears to operate using different legal authority. Sorry, it’s hard to keep up… but here, too, it appears that Congress – though possibly unwittingly – granted new powers to the president.)

The relevant piece of the Patriot Act (P.L. 107-56) is Section 215, entitled “business records,” which amended the Foreign Intelligence Surveillance Act (FISA) of 1978 to include the following text:

The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.


The investigation shall “be conducted under guidelines approved by the Attorney General under Executive Order 12333 (or a successor order)” – this E.O. deals with intelligence gathering, and basically says it has to be legal (which the Patriot Act says it is, so…) To be approved by the FISA court, the application need only “specify that the records concerned are sought for an authorized investigation conducted …to protect against international terrorism or clandestine intelligence activities.”  If that’s done—and that’s a pretty easy bar to clear, given a Justice Department willing to sign off on such a broad program—then the judge would seem to have little discretion.

Nor does it seem likely that the program, at least as publicly described (e.g. in the court order, see here), violates the Fourth Amendment. This seems odd given that amendment’s ban on “unreasonable” search and seizure procedures. But as it happens the Supreme Court ruled in Smith v. Maryland back in 1979 – in a majority opinion that brought together justices as disparate as Harry Blackmun and William Rehnquist – that the kinds of records tracked in the present case are not subject to the 4th amendment (thanks to Harry Pohlman for pointing this out). Their reasoning was that you have “no reasonable expectation of privacy” when it comes to the numbers you dial, since you know that the phone company keeps track of such information.  In any case, the majority held, “even if petitioner did harbor some subjective expectation that the phone numbers he dialed would remain private, this expectation is not one that society is prepared to recognize as reasonable. This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”

One could argue that in the cell phone age the conception of location and numeric data is quite different (we are as far removed from 1979 as 1979 was from operator-controlled party lines). But so far as I know, Smith is still good law.

So, we can complain about the policy choice, but the lack of limits in the law’s language does constitute a policy choice, not an administration “going rogue” outside the law. (Whether you should read the law the way the administration wants to, you could.) We could blame the rushed process by which the act was passed in October 2001, given the stress (and yes, terror) of the time, but since then this text has been renewed at least three times (in 2006, 2010, and 2011), and there has been quite a lot of argumentation over Section 215 (a useful background piece for the ‘11 debate is here.) As John pointed out below, Congress has signed off on this language quite explicitly.

Just for fun, you can read Senator Obama’s speech on the 2006 reauthorization here (“I will be supporting the Patriot Act compromise. But I urge my colleagues to continue working on ways to improve the civil liberties protections in the Patriot Act after it is reauthorized.”)  President Obama, once in office, was rather less concerned with said improvement; AG Eric Holder said in 2011 that the administration strongly supported extending Section 215 “for as long as we possibly can.” That turned out to be to 2015 – though current events may change that calculation.

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