President Obama is expected to formally announce today that he will pursue executive action design to expand background checks on some guns purchases. Obama’s decision has been described by media outlets as a way of sidestepping a Congress that has opposed enacting more stringent gun control legislation. Predictably, the President’s decision to act “unilaterally” has provoked the ire of Republicans, particularly those running for president, who are unanimous in condemning Obama’s decision as an excessive exercise of presidential power. In a not uncharacteristic assessment, New Jersey Governor Chris Christie complained on Fox News Sunday that Obama “is a petulant child… because quite frankly, the American people have rejected his agenda by turning both the House and the Senate over to the Republicans, and going from 21 governors when he came into office, the 31 Republican governors now, now this president wants to act as if he is a king, as if he is a dictator.”
But the reality is that executive actions like these are an indication of presidential weakness – not dictatorial power. The fact is that one of the great frustrations of Obama’s presidency – a frustration he has expressed on more than one occasion – has been his inability to get Congress to pass more stringent gun control legislation. In response, Obama has decided to move ahead on his own, in this instance by taking executive action to broaden the definition of what it means to be a gun seller. Under existing law, those purchasing guns from licensed gun dealers must undergo a background check. Those acquiring guns privately, in contrast, do not. By broadening the definition of who is a “gun dealer”, then, Obama’s executive action will in theory expand the number of background checks.
However, while it is true that Obama is, in effect, “making law” unilaterally, the substantive impact of his actions on gun violence is likely to be small, something he concedes. Indeed, in the run up to his announcement, gun sales have soared to levels not seen in two decades. The broader point, however, is that taking executive action, as opposed to legislating, is not a very effective way to make substantive, lasting policy change. This is a point that political pundits, and even some political scientists, frequently overlook. There are several reasons for this. To begin, executive actions have much more limited scope than legislation – presidents can’t use them to overturn existing law. Nor can they be used on actions that require spending money without appropriations by Congress. In the case of background checks, Obama can order executive agencies to redouble their efforts to expand background checks, but he can’t unilaterally appropriate more money to implement his order.
The bigger problem when it when it comes to making law via executive action, however, is that the outcome is often short-lived, a point Donald Trump drove home in his interview with John Dickerson on Face the Nation on Sunday. When asked about Obama’s proposed action, Trump replied, “Well, I will say this. There’s lot of precedent, based on what he’s doing. Now, some have been — his executive order on the border, amazingly, the courts actually took that back a step and did something that was very surprising, which is, they did the right thing, so that maybe that one — but I would be rescinding a lot of executive orders that he’s done (italics added).” Trump’s threat to rescind Obama’s executive action is not to be taken lightly. In forthcoming research Jesse Gubb and I have conducted, we have found that of the roughly 300 most substantively important executive orders (EO’s) issued during the period 1947-2003, only about half are still on the books today. About 30% have been revoked by a subsequent president and another 2% overturned by congressional legislation. Because of the censored nature of the data, this probably understates how many EO’s have been actually revoked.
Beyond the lack of durability, however, executive orders illustrate a more general weakness of relying on what presidential scholar Richard Neustadt describes as a president’s “command” authority: it indicates a failure to bargain effectively with Congress. Trump drove this point home in his interview, noting that, “It’s supposed to be you get along with Congress, and you cajole, and you go back and forth, and everybody gets in a room and we end up with deals. And there’s compromise on lots of other things, but you end up with deals. Here’s a guy just goes — he’s given up on the process and he just goes and signs executive orders on everything.” Without trying to apportion blame, or even to accept Trump’s characterization that Obama has “given up” on the legislative process, the plain fact is that the President and Congress have not engaged successfully in the process of bargaining that is at the heart of the legislative process.
There is a more fundamental risk in Obama’s approach, however, beyond the failure to secure a desired legislative outcome. It is that efforts to achieve goals unilaterally are likely to stiffen congressional resistance to future presidential efforts to secure preferred legislation in other areas. In his famous study of the presidency, Neustadt noted that when it comes to evaluating presidents, “Strategically, the question is not how he masters Congress in a peculiar instance, but what he does to boost his mastery in an particular instance, looking forward tomorrow from today.” We have seen other instances, most notably in his efforts to expand legal protection to children who came to this country illegally, where Obama’s efforts to act unilaterally have embroiled him in legal controversy and perhaps stiffen congressional opposition to his objectives.
For all these reasons, unilateral executive action is a poor substitute for bargaining with Congress and is best understood not as a sign of an imperial presidency who can “make law with the stroke of a pen” but rather as evidence of a president’s inability to bargain successfully with the legislative branch. Speaking more generally about presidents’ efforts to achieve goals via “command” authority, Neustadt concludes that, “Not only are these ‘last’ resorts less than conclusive, but they are also costly. Even though order is assured of execution, drastic action rarely comes at bargain rates. It can be costly to the aims in whose defense it is employed. It can be costly, also, to objectives far afield.” One can understand Obama’s frustration with Congress’ unwillingness to enact more stringent gun control via universal background checks. It may be that in issuing this latest executive action, Obama will make the issue of gun control more salient to the public, thus increasing pressure on Congress to act legislatively. But I suspect it is more likely that this latest action will harden opposition in Congress to further gun control legislation and that any real progress on this front will have to wait until a new President and Congress take office. If so, Obama will not be the first president to confront the difficulty of trying to make policy unilaterally in a constitutional system of shared powers. Unfortunately, he is also not likely to be the last.
Are there second acts in American politics? Back at the end of September, Carly Fiorina’s political star appeared to be on the rise. After what most viewed as a dominating performance in the debate among second-tier Republican candidates, Fiorina was promoted to the big stage for the second major Republican debate, and again she received critical acclaim from political pundits for her performance. Those positive reviews translated into increased media coverage, which in turn boosted her name recognition and polling support. Over a two-month period, from August through Oct. 1, Fiorina gained almost 8% in national aggregate polling trackers, and she moved into a closely-grouped cluster of three candidates, along with Jeb Bush and Marco Rubio, who seemed poise to take the lead if the two frontrunners, Donald Trump and Ben Carson, faltered. She made similar strides in the key state of New Hampshire, which holds the first-in-the-nation primary; there at least two polls in late September placed her second, trailing only Trump by about 5%.
Unfortunately for Fiorina, she has not been able to maintain her polling momentum. Since Oct. 1, she has lost almost all of her previous two month’s gains in national polls, and she has dropped below almost every one of her rivals in recent New Hampshire polls as well. With only two months before New Hampshire’s primary, Fiorina is stumping across the state in a bid to staunch the hemorrhaging in her political support there. Last night she hosted a campaign event in West Lebanon NH, and your intrepid political blogger was there. Here’s what I saw:
Fiorina was introduced by Marilinda Garcia, a rising Republican star who lost by 10% in New Hampshire’s 2nd Congressional district to Democrat incumbent Annie Kuster in 2014. The auditorium in which Fiorina spoke was not quite full – I guesstimated attendance at about 150 people – but it was a far better turnout than the almost empty room that apparently greeted Fiorina at an Iowa Town Hall event on Monday. A show of hands indicated that most of the attendees were Republicans, and they appeared generally well disposed to Fiorina and her message, with frequent applause for her comments throughout the night. Before Fiorina took the stage, we recited the Pledge of Allegiance, and also sang the Star-Spangled Banner – a first at any of the campaign events I attended this year.
Fiorina began the night by noting that she started out this campaign back in May as “18th out of 17 candidates” – pollsters didn’t bother to include her name in polls – and so she appreciated the strong support she is receiving in New Hampshire. She then provided a brief biographical overview, beginning with her college education at Stanford (a Medieval History and Philosophy major!), her brief dalliance with a possible career in law and her decision to enter business school instead. After graduation she moved up the ranks in various companies, starting with AT&T and culminating in her controversial tenure as Hewlett Packard CEO. Only in America, she told the audience, could someone starting from her humble roots work their way up the corporate ladder to become a CEO of a major company and a candidate for the Presidency.
During the overview she acknowledged her bout with breast cancer (she had a double mastectomy) and the loss of her daughter Lori to drug addiction. These events, she said, made her particularly sensitive to issues of health care and the opiate addiction problem that has become so prominent in New Hampshire. She reminded the audience that she had probably met more world leaders than any other presidential candidate (with the exception of Clinton) due to her business dealings and subsequent role on a CIA advisory board and work with various international NGO’s such as Opportunity International. This made her uniquely qualified to deal with international issues.
She then turned to critiquing the state of American politics, calling the current government both “corrupt” and “inept” – characterizations that she said were shared by most Americans according to polling data. The corruption is because “the professional governing class” isn’t held accountable – politicians win reelection after reelection and bureaucrats are never threatened with removal. As evidence of ineptness, she noted that neither of the terrorists behind the San Bernardino attacks was on anybody’s watch list. In contrast to this lack of accountability, as head of Hewlett-Packard she had to file regular progress reports documenting progress, and if she tried to cook the books she would have been held criminally liable.
A good part of Fiorina’s appeal – one she played up repeatedly in her talk and in the question and answer portion (see below) – is that she comes from the private sector, and thus can claim to understand how technological innovation is changing the world. In this vein she scolded Congress for debating the details of the USA Patriot act, arguing that technological change had made the debate over a more than decade-old piece of legislation obsolete, but that professional politicians didn’t realize this. At one point she quipped that the best way to empower citizens was to makes sure everyone who still had flip phones threw them away. More generally, she touted technology, particularly communication innovations, as the key to allowing citizens to hold government more accountable. “Young people understand this,” she noted. During the Q&A, again touting the virtue of citizen involvement via technology, she said “there is app for citizen government” that allow for greater interaction between citizens and government officials.
She then launched into a discussion of her policy positions saying that as president she would be held accountable for achieving six things. Much of what she said, beginning with her “On Day 1 as President I will make two phone calls” – one to “her good friend Bibi” Netanyahu and one to the Ayatollah of Iran – is familiar to those who have watched her debate performances. Her first objective would be defeating ISIS. Here she made a direct attack on Donald Trump who, she said, was attempting to deflect attention from his lack of a plan for defeating ISIS by trying to focus attention on blocking Muslims from immigrating into the country. Interestingly, her swipe at Trump elicited strong applause from the audience. Fiorina would continue bombing, while expanding U.S. special operations. Pointedly, she did not call for more U.S. boots on the ground, but instead proposed reaching out to Arab nations to solicit more ground forces from them.
To fix immigration, in addition to securing the borders Fiorina would move to a “pro-American” immigration policy which presumably means a policy that lets in immigrants with desirable economic skills. She agrees with Bernie Sanders about the dangers of “crony capitalism”, but she disagrees with his solution. To Fiorina, crony capitalism works through its connections with government, and thus the cure is to reduce government, including repealing Obamacare. Here she returned to her history as a cancer survivor, acknowledging she understands what it is to be someone with a preexisting condition. But she would return responsibility for health insurance to the states, allowing them to establish high-risk pools for those with preexisting conditions. More generally, she believes in a free-market approach to health care based on informational transparency, in which patients fully understand the proposed treatments for health problems, their costs, and the treatment outcomes, and choose accordingly.
She noted that Americans are experiencing a period of “disquiet” that we are losing the character of this nation. To restore our belief in life, liberty and the pursuit of happiness we must find common ground on issues. Here she cited what she said was a growing consensus for defunding Planned Parenthood. She again pushed her tax simplification plan – “We can reduce the tax code to three pages” (this drew maybe the biggest applause of the night) – and touted the virtues of zero-based budgeting (without explaining what it entails) – “It’s the way you budget at home.” She finished by contrasting “managers” – “those who accept things as they are” – with “leaders” who work to change the status quo. Presumably she would be a leader!
Fiorina then opened up the floor for questions. As is typically the case, the Q&A session provided some of the night’s most interesting moments. Fiorina took six questions, touching on immigration reform, climate change, health care, Planned Parenthood, how to make government work, and dealing with the Russians.
When asked why so much of the immigration reform centered on removing “migrant farm workers” and other laborers, rather than terrorists, Fiorina responded, “You must be talking about sanctuary cities” which she opposes because they allow local governments to flout federal law. Regarding climate change, she expressed disagreement with those who cite it as the greatest national security threat (to great applause) and said she favored making the U.S. an “energy powerhouse” by making it easier to export “cleaner” domestic oil and coal. “Nuclear power has to be put back on the table too,” she noted, again to much applause. She defended her push to defund Planned Parenthood by noting that it was not fair to subsidize that organization with federal tax dollars while denying that money to community health centers that provide some of the same services. Pointedly, to the best of my recollection, Fiorina did not mention the infamous “baby killing” video the entire night. When asked how to deal with Russia, Fiorina responded, “I won’t talk. I will act” (again generating huge applause) by building up the 6th Fleet, instituting a no-fly zone in Syria, and developing anti-missile technology. Only after these are in place would she consider sitting down with Putin.
After taking questions, Fiorina finished up the night by citing two ladies – “Lady Liberty” and “Lady Justice” – as symbols of what this country stands for, and what must be restored to make it great again. “We must be one nation, under God,” she reminded the audience before asking for their vote. The audience gave her a standing ovation, and she spent significant time afterward meeting, greeting, and posing for selfies before heading out the back way to Manchester.
On paper, Fiorina would appear to be the type of candidate whose background and policy positions would appeal to the typical moderate New Hampshire Republican. But after her initial polling surge two months ago, she has struggled to regain traction here. One wonders how much of that has to do with her comments regarding the infamous Planned Parenthood video, which may have cost her some support among women and moderate voters. But it may also be the case that, as with other more moderate Republican candidates like Christie and Kasich, Trump is simply taking up too much of the political oxygen right now to give Fiorina any breathing room. Barring an implosion on his part (and it’s hard to see what more he can say to provoke one!) Fiorina is likely to continue struggling for the much-touted second or third-place ticket out of New Hampshire. History is not kind to second acts in American politics, and it may be that Fiorina’s fall polling surge came a couple months too early. This makes the remaining three debate performances before the Iowa caucus all the more crucial to her candidacy. While she remains a longshot to win the Republican nomination, strong debate performances might boost her polling support and electoral performance and perhaps, eventually, put her in line for a cabinet or other administrative position (U.S. Trade Representative? Commerce?) in a Republican administration or maybe even someone’s vice presidential candidate. She said more than once during last night’s event that she was uniquely suited to defeating Hillary Clinton – a point that her staff made to me as well after her speech. Let’s see if the eventual Republican nominee believes that to be true. Meanwhile, like a bevy of other Republican candidates, she soldiers on, another player in this uniquely American electoral spectacle that is the 2016 race for the presidency in New Hampshire.
Two nights ago the Vermont and New Hampshire Republican Party county committees held a joint fundraiser in Lebanon, N.H. featuring many of the Republican presidential candidates or their representatives and, as part of my ongoing series chronicling the presidential campaign, your intrepid blogger shelled out $35 to attend the candidate forum. Since the event was titled the “2015 Connecticut River Run,” I initially thought the candidates might be running a road race, and the prospect of seeing a red-faced Chris Christie in spandex, barreling down the finish line while knocking aside Lindsey Graham, Rand Paul and the other candidates like so many ten pins, seemed well worth the price of admission. Alas, this turned out to be a much more staid event held indoors at the local Elks Club. A big elk head stood hanging behind the speaker’s podium, unblinking, evidently hanging on every word, which provided a nice backdrop as the candidates made their pitch. (My biggest twitter reaction all night was in response to my tweet calling the elk a moose head.)
Only about 50-70 people attended (including Vermont Lieutenant Governor Phil Scott), most of them middle-aged or older, so we were able to get good seats (sitting alongside Vermont gubernatorial candidate Scott Milne who is as low-key and unpretentious in person as he seems on television) at a table near the front of the hall, where I chowed down on lobster rolls and finger food while live tweeting the event. Here are my notes from the event.
As I have noted in previous posts, several Republican candidates have staked their hopes on doing well in New Hampshire’s first-in-the-nation’s primary. For many of them, the recent terrorist attack in San Bernardino has given them an opportunity to highlight their more hawkish foreign policy views in the hope that national security issues will become increasingly relevant in the campaign. With only two months left before the primary, however, their opportunities to make an impression with New Hampshire voters are dwindling, and so even smaller events like this draw candidates – particularly those in the second tier who are struggling to gain traction. Not surprisingly, then, the candidates who made personal appearances included Lindsey Graham, John Kasich and George Pataki – all of whom are polling in single digits (or lower!) in the Granite State. The rest of the Republican hopefuls had surrogates making pitches on their behalf. Here is the latest aggregate polling averages for the New Hampshire Republican primary:
The format was simple: each candidate (or their surrogate) had up to 15 minutes to make their case before yielding the podium to the next in line. You might think that with only 15 minutes to talk, one wouldn’t learn much about the candidates, but instead the need to boil their candidacy down to its essential features proved quite useful. With no time to spare, each candidate was forced to focus on what they thought was their strongest selling point.
South Carolina Senator Lindsey Graham, introduced by his sister Darlene, led off the proceedings. After complimenting Vermont Republicans who attended for their “political courage” living in a heavily blue state, and then taking a brief shot at the way the media used national polling to influence their coverage of the race (Graham has been excluded from the top debate stage due to low national polling numbers) he proceeded to launch into his signature issue – the need to put 5,000 U.S. ground troops into Iraq to defeat ISIL. Graham has moderated his hawkish foreign policy tendencies a bit – he now emphasizes that most of the fighting will be done by a much larger Arab ground force (90% of the coalitional forces) led by Americans, and that U.S. troops will not remain once ISIL is defeated. Still, he is clearly hoping the recent terrorist attack will refocus the campaign on foreign policy issues – particular the fight against ISIL. After briefly reminding the audience that his mother could not have raised their family without government assistance, Graham concluded by referencing his humble roots, asking rhetorically, “Can a person who grew up behind a bar become President of the United States? I don’t know!” I’ve said it before – Graham is an underappreciated candidate, one who deserves a more prominent platform than the media has given him to date, but at this point one wonders whether he is really angling for an appointment in the next Republican administration as Secretary of Defense.
If you want to know why Jeb! Bush’s candidacy is struggling, last night’s presentation by his surrogate, former U.S. Attorney General Mike Mukasey, provided some clues. Mukasey was introduced as someone who New York Democratic Senator Chuck Schumer thought would make a good Supreme Court justice. That prompted Mukasey to spend the first part of his speech explaining why Schumer would push Mukasey’s name for the highest court in the land. That vignette might have been interesting if Mukasey was running for President, but he’s not – at least I don’t think he is. When he finally got around to discussing Jeb!, he did so in such a low-key tone that you might have thought he was describing what he had for breakfast. It was a decidedly unimpressive presentation, made more so when Ohio Governor John Kasich, not even bothering to stop and remove his jacket, dashed in, grabbed the microphone and proceed to give a much more animated and folksy presentation. Kasich, adopting the role of Pastor-in-Chief, eschewed discussing policy to speak instead on the importance of having meaning in life and how the lack of such meaning is fueling both the growing drug addiction among the young and the ability of ISIL to recruit disaffected Muslims. “I know it’s not a good political speech,” Kasich acknowledged, but he attributed his spiritual focus to the Christmas season. (Each table was festooned with a poinsettia centerpiece, which the organizers then forced us to buy in order to exit the premises; my wife charitably forked over the $5 extortion fee to set us free.)
Former New York Governor George Pataki, dressed as always in jacket and tie, gave probably the most energized speech of the night, one that drew a rare round of applause from a crowd that for the most part seemed content to sit on its hands. More than anyone else on the dais, Pataki used the San Bernardino attack as a talking point to buttress his belief that the country needs to declare war on ISIL, and he repeatedly linked the recent terrorist attack to 9-11 which occurred while he was Governor of New York. “We must attack them there,” he thundered, “or they will attack us here.” His talk was sprinkled with references to radical Islam and at one point he dared Attorney General Lynch to prosecute him for using those words – a line that drew cheers from the audience. Pataki advocated shutting down internet sites that actively encourage terrorism and doing the same to community settings, including mosques, that preach violence. He mentioned that he has two sons serving in the military, and thus appreciates what it means to send soldiers to war. Pataki was the only candidate who took questions. When asked about how to deal with arrogant bureaucrats in Washington DC, he said he would get rid of them, citing as precedent his actions shrinking state government as New York’s Governor. In response to a second question regarding how to deal with Russia’s presence in the Syria, he said he would work with Turkey to set up a no-fly zone.
Former Governor Jim Gilmore was scheduled to speak after Pataki and I was curious to see how he would be received. Alas, in what can only be seen as a fitting metaphor for his presidential campaign, Gilmore never showed up, and no one could say where he was. After the Gilmore no show, there came a succession of surrogates representing candidates Rubio, Fiorina, Cruz, Christie, Carson, Trump and Paul. They were an interesting mix. Rubio was represented by Randy Johnson, a former Florida Representative who claimed he knew there was something special about Rubio the moment he met him. Cruz’s representative – former New Hampshire House Speaker Bill O’Brien – made it clear that Cruz would not compromise his conservative values if elected. Rather than extol her virtues, Fiorina’s spokesman Gene Chandler (another former NH House Speaker) directed listeners to her website which lists the six objectives of her campaign. Trump’s surrogate, Fred Ducette (I hope I have his name correctly spelled) apologized for not being a politician and also for feeling too ill to speak at length. After fumbling to make the microphone work, he then proceeded to list Trump’s virtues – “He’s beholden to no one!” – promised that Trump would make America great, and exited. Rand Paul’s representative took the libertarian approach, declining to speak at the podium (he may have been reluctant to touch the microphone after Ducette coughed all over it) and instead offering to meet interested parties in the back of the room. Carson’s surrogate began by noting that the Good Doctor had led a surgical group in a lengthy and ultimately successful effort to separate conjoined twins, so he knew the virtue of teamwork. Only Santorum and Huckabee didn’t bother sending representatives which I expect reflects their realization that their brand of social conservatism is not going to play well in New Hampshire.
Never too shy to express an opinion, Donald Trump has for some weeks now been calling for candidates who are languishing in the polls to drop out of the race, arguing that this will give the real candidates more time on stage to make their case. I understand The Donald’s point. But there is something to admire in candidates like Graham and Pataki, both of whom are drawing less than 1% in aggregate polling in New Hampshire, and yet who nonetheless continue to push on, moving from Elks Lodge to Legion Hall to public library, crisscrossing the state to passionately make the case for why they should be elected President. It may be that at this point they are running for something else – a cabinet post, or a television talk show – rather than the presidency. Whatever their motivation, and however unrealistic their chances at winning, there is still some virtue in having them out there, making their case and discussing the issues in person to the voters. New Hampshire offers a unique opportunity for voters to meet so many of these candidates before they are winnowed. Graham captured this sentiment, I think, when he told the audience why keeping New Hampshire’s primary first in the nation is so important: “It’s the last best chance for democracy to work at the local level.” That may be somewhat melodramatic (and politically self-serving too!) But where else can you shake hands with a potential president of the United States, and bring home a slice of Presidential Political Americana in the process?