In his memoir Present at the Creation, former Secretary of State Dean Acheson wrote: “One fact is clear to anyone with experience in government: the springs of policy bubble up, they do not trickle down.” I was reminded of Acheson’s comment when reading the pundits’ often misleading analyses of the contraception controversy that President Obama found himself enmeshed in this past week. As most of you know, the President initially embraced an administrative rule issued by the Health and Human Services (HHS) department that required employers – including religious-back organizations such as charities, hospitals, and schools – to offer health insurance that fully covered contraception, even if the use of contraception ran contrary to church doctrine. Obama did so only after listening to extended debate among his own advisers regarding whether to accept or modify the HHS rule. In the end he sided with HHS Secretary Kathleen Sebelius, and domestic advisers Valerie Jarrett and Melody Barnes in backing the rule, against the opposition of Vice President Joe Biden and chief of staff Bill Daley and others who sought to broaden the religious exemptions. (Barnes and Daley have since left the administration).
With hindsight, it was the wrong decision, one that was opposed not just by religious organizations, but by many Democrats serving in Congress as well by left-leaning pundits who are normally the President’s strongest supporters. The subsequent political furor not only overshadowed the President’s effort to focus public attention on the strengthening economy; it also threatened his health care mandate and, potentially, his reelection. To his credit, the President quickly realized his mistake and pushed his advisers to craft a fallback compromise under which insurance companies, rather than the religious-affiliated institutions, would handle and pay for contraceptive coverage. While this compromise has not entirely quelled the political fires, it does place the administration on stronger political footing.
How did the President find himself in this predicament? Some, like blogger Andrew Sullivan, are arguing that Obama’s fallback was a clever “bait and switch” maneuver designed to trap the Republican Right into overreaching by appearing to oppose a women’s right to contraception. Indeed Sullivan says this type of policy retreat is one of the hallmarks of Obama’s presidency: “I’ve found by observing this president closely for years that what often seem like short-term tactical blunders turn out in the long run to be strategically shrewd. And if this was a trap, the religious right walked right into it.”
Sullivan is correct on one point: this was an elaborate trap all right. But it was one set by Obama’s own HHS-led advisers, and at the President’s expense. In suggesting Obama was pulling the policy strings all along, Sullivan falls prey to a common conceit: that presidents are in charge of the executive branch and the policies it produces are the ones he actively solicits. Alas, as Acheson – a veteran of more than two decades working in the executive branch – understood, the policy process rarely allows the president to engage in the type of “deep game” that Sullivan fantasizes this president has mastered. Instead, the process is more often one in which the president comes in at the tail end, and is forced to choose from a limited menu of options that often carry high risks no matter what he decides. But decide he must – albeit with incomplete information and based on the advice of senior officials who have their own interests at stake in the outcome. So it was with the contraceptive debacle.
In this case, Sebelius and HHS had first issued a preliminary rule laying out the initial contraceptive insurance policy last August. When an executive branch issues a potential rule or regulation, it is posted in the Federal Register for a comment period. During this period interested parties can weigh in on the merits of the interim rule. By most news accounts, Obama’s advisers were deeply divided regarding whether to go ahead with the new regulation. Ultimately Sebelius and her allies won out, but only after pushing the deadline for the rule to go into affect (at least as it affected religious organizations) to after the 2012 presidential election. When that decision was publicly embraced by the White House, the political firestorm ensued, necessitating Obama’s hasty retreat to the current fallback position.
The President’s tactical retreat will almost certainly not end the controversy, as both sides struggle to reframe the debate in ways that appeal to their political base; for Republicans, this is a question of maintaining a separation of church and state. For Democrats, it is a matter of women’s right to have access to affordable contraception. Polls indicate, not surprisingly, that the public is divided on the issue, and along predictable lines, although the extent of the division depends in part on how the polling question is worded. I don’t pretend to know how the debate will play out, but as long as it remains in the public eye, it detracts from other issues on which the President would likely prefer to focus.
For my purposes here, however, the politics of the matter is less important than how the media pundits have sought to portray the debate. This is not the first time that Obama’s supporters have discerned a deeper purpose in his political maneuvering; many of you will recall that the President was supposedly engaged in a similar chess match with checkers-playing Republicans during the debt default debate, when he was apparently setting the Republicans up for his master stroke: invoking the 14th amendment. This was nonsense, of course – a point I made at the time more than once. But, judging by Sullivan’s comments, that outcome has not stopped some of his supporters from imputing greater power to the President than he actually possesses; from their besotted perspective, every presidential pimple becomes a beauty mark, and every stumble is a feint designed to mislead a dimwitted opponent. Alas, sometimes a pimple is an eyesore, and a stumble nothing more. Pretending otherwise, and thus raising expectations regarding what Obama can hope to accomplish to unreasonable heights, does him no favors. Expectations are hard enough to manage without attributing powers of foresight to the President that he does not possess.
There is a second lesson in the contraceptive debate, one I’ve cited in previous posts. It is this: Presidents are no more in charge of the rulemaking process, or of the executive branch more generally, than they are of legislating in Congress. Contrary to the claims of some of my colleagues that presidents have a vast reservoir of “unilateral” powers, when it comes to rulemaking and many other administrative procedures with significant policy consequences, presidents often find themselves forced to bargain even within their “own” executive branch – and with their own political appointees. The reason, of course, is that by virtue of their own constitutional and statutory obligations, a President’s executive branch appointees rarely see policy, and the related rules and regulations, from the President’s vantage point. More than three years into his presidency, it is a lesson Obama seems not yet to have learned.