No, Obama’s Executive Action Did Not Violate Governing Norms

But that doesn’t mean it was smart.

In my two previous posts  regarding President Obama’s decision to take executive action to defer deportation proceedings against some 5 million undocumented immigrants, I suggested that its impact on his power would be determined by politics – that is, by the public reaction, as expressed through elected officials and mediated by the press. Predictably, in the 48 hours since Obama’s gave his national address, both sides on this issue have enlisted their usual allies in the punditocracy to make their case to the public.

Critics of Obama’s action have generally not attacked him on the merits of his executive action. All seem to agree that immigration policy is broken, needs to be fixed, and thus this is, substantively, a step in the right direction. Instead, they direct their ire at Obama’s apparent willingness to violate some unspoken “norm” that apparently constrained previous presidents from making significant policy change of this magnitude absent an overarching emergency. They note, for example, that previous immigration orders issued by presidents Reagan and George H. W. Bush affected far fewer people, and were designed to clean up existing legislation, rather than to make new law.  As Sean Trende puts it, “That is what this really comes down to, at least for me: A substantial violation of norms surrounding executive authority.”

I confess that I’m skeptical that norms alone have deterred previous presidents from seeking to expand their sphere of authority. Instead, it has been fear of blowback from the other governing branches with which the president shares power. And that is how it is supposed to be. As Madison famously wrote in Federalist 51, “But the great security against a gradual concentration of the several powers into each department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachment of the others… .The interest of the man must be connected with the constitutional rights of the place.”

If Republicans, and their allies in the punditocracy believe Obama has overreached (and I think there is merit in that argument) the remedy is not referencing a need to restore some long-standing norm of comity and deference. It is for members of Congress to act to defend their constitutional preeminence in the lawmaking process. Presidents seek power because that is how they get things done – and in the process they provide an agenda and thus a focal point to which the legislative branch can react. “The more determinedly Presidents seek power,” wrote presidency scholar Richard Neustadt, “the more he will likely bring vigor to his clerkship. As he does so he contributes to the energy of government.” One cannot stop presidents from seeking to exercise power in pursuit of policy objectives by telling them it is impolite, and that they need to play nice. Instead, when presidents try to usurp too much authority, the proper remedy is to threaten to cut off their allowance and send them to bed without supper.

To be clear, my critique of Obama’s executive action on immigration is not that he has violated some longstanding norm governing relations with Congress – it is that his decision to move unilaterally is likely to provoke a backlash from Congress that in the long run will weaken his effective influence on government, much as happened with FDR and court-packing, Nixon and budget impoundment and Bush II and social security reform. (Interestingly, that backlash may be grounded in part on the claim that Obama’s actions are illegal although, as I’ve previously suggested, legal opinions tend to reflect the underlying political sentiments.)  However, I may be wrong in my assessment. As Matthew Beckmann suggests (see his comment here), it may be Obama’s decision will do little to change the strategic calculus guiding congressional Republicans’ relations with the President more generally, which is to compromise when it suits their interests, and to obstruct if that pays greater political dividends. It might also be the case that a divided Republican caucus will be unable to muster the political will to respond because they cannot agree on how to retaliate. At this point it appears that the Republican leadership is weighing their options. Conservatives like Ted Cruz are itching for another showdown over funding, with the possibility of a government shutdown. The Republican leadership, understandably, is looking for a less politically risky means of responding. I suspect both factions are limited in what they can do until they assume majority Senate control in January. But, in the absence of additional evidence (and pushback from you, the reader) I stand by my position that Republicans will seek to retaliate and that therefore Obama’s action – while not breaking any “norms” – is nonetheless potentially counterproductive.

Has Obama Stepped Into the Second-Term Trap?

Does Obama’s executive action on immigration demonstrate that he has fallen into the second-term trap that ensnared so many of his predecessors?

Two years ago, looking ahead to Obama’s reelection, I posted this piece warning about the “history of past presidents who won a second term in office.” The danger, I wrote then “is that the combination of a reduced window of opportunity to enact policy and political change combined with an overwhelming desire to enhance one’s presidential legacy can prove politically lethal.” This was particularly true, I argued, because presidents who are freed from having to face the electorate often display a stunning lack of political sensitivity. At the same time, having successfully won reelection – often by large margins – they tend to overstate the degree to which voters have given them a mandate to pursue treasured policy objectives. As evidence, I cited examples including FDR’s court-packing scheme, Reagan’s Iran-contra affair and the second Bush’s effort to push social security reform. I might also have cited Nixon’s budget impoundments and, perhaps, Clinton’s sexual dalliance with Monica as well.

Today I have a piece up at U.S. News  that considers whether Obama’s decision to take executive action designed to defer deportation proceedings against up to five million undocumented immigrants, and to allow many of them to work legally, fits within this historical pattern of second-term overreach. My tentative conclusion – subject to correction by you, dear readers – is that Obama has needlessly jeopardized his political standing, but this does not necessarily mean he will suffer the same degree of political fallout that befell his presidential predecessors. Much depends on how Republicans respond to Obama’s misstep.

As I note in my U.S. News piece, my judgment is not based on the belief that Obama has overstepped his formal powers. Legitimate arguments regarding the legality of Obama’s executive action can be found on both sides of the legal issue. But those who assess Obama’s action solely on legal or constitutional grounds are missing the bigger picture – whether Obama suffers the fate of his predecessors will be determined by the political process, not a legal one. That is, ultimate judgment will be rendered by the public, as expressed through the actions of their elected representatives and as mediated by the press in all its variegated forms. That verdict will depend in part on how congressional Republicans respond. Their potential choices run the gamut from voting to censure the President, withholding funding from relevant agencies, or blocking confirmation of nominees to key positions such Attorney General, to cite some of the publicly-discussed options.

But the greater concern for Obama, I think, is the long-term impact of his immigration action on his relations with Congress and on political support for his presidency more generally. In the U.S. News piece, I raise this question: “If the President’s actions on immigration, as announced yesterday, essentially poisons his relations with Congress for the remaining two years of his presidency, thus foreclosing efforts to pass climate change legislation, or to address tax reform or entitlement programs – was it worth it?” The short answer, I think, is no – it will not be worth it. This is because, in my view, immigration was the one issue that had the potential for Obama and congressional Republicans to strike a bipartisan deal in no small part because Republicans had an electoral incentive to do something to shore up their support among Hispanics. In his memoirs, former president George W. Bush acknowledges that he should have pursued a bipartisan immigration bill first after his reelection, rather than opting for social security reform which was a much tougher bill to pass. By pursuing social security reform, Bush believes he further polarized an already divided Congress, making subsequent efforts to deal with immigration impossible. Such is my fear with Obama’s decision to go it alone via executive action – it needlessly inflames an already volatile situation, and at exactly the wrong moment: when Republicans are feeling their oats after coming off a convincing midterm victory. As House Speaker John Boehner made clear in his statement today, Republicans are going to retaliate for Obama’s actions with untold consequences for future relations between the two branches.

To be fair to Obama, it is always difficult to weigh uncertain long-term costs against clear and immediate short-term gains. There is an argument to be made, moreover, that Obama has put Republicans into a box because any effort by them to move against Obama on immigration risks alienating the growing bloc of Hispanic voters heading into the 2016 elections. But Obama could have just as easily accomplished that goal by forcing Republicans to negotiate a comprehensive legislative immigration fix, or else risk alienating Hispanics, and at less political cost. Moreover, as several critics have suggested, Obama’s action may set a dangerous precedent that future presidents, including Republicans, can cite to justify ignoring or changing law on their own.

For all these reasons, my initial reaction is that Obama has needlessly risked his already diminished political clout. If so, he would not be the first president to fall prey to the second-term combination of political hubris rooted in decreasing political sensitivity and a desire to burnish one’s political legacy. But the fact that previous presidents have made similar mistakes ought not to excuse Obama’s behavior. Instead, assuming my analysis is correct, it raises the question as to why he didn’t avoid following in their footsteps.

Health Care and the Obama Presidency: A Giant Squander?

There’s no doubt that, as midterms go, President Obama has not fared well. In 2010, his Democratic Party lost 63 House seats – the biggest midterm loss in that chamber since 1938 – and with it control of the House to the Republicans. Although they also lost six Senate seats, Democrats were at least able to retain their majority there. Four years later, however, Democrats lost the Senate too when Republicans picked up 8 Senate seats in the 2014 midterms – with one more still at stake – to regain a Senate majority. Republicans also padded their House majority by gaining a dozen more seats (a handful of House races have yet to be decided). The net result is that Obama is facing an opposition-controlled Congress for the last two years of his presidency.

The successive Republican waves are particularly devastating because they swept away what many pundits believed to be a coming period of Democratic electoral dominance. When Obama was elected President in 2008, he appeared to display substantial coattails; Democrats picked up 25 House and 8 Senate seats and enjoyed comfortable majorities in both chambers. More importantly, demographic trends suggested the size of the Democratic voting coalition was likely to expand in the coming years. In short, Obama’s election was, as one pundit put it at the time, “likely to create a new governing majority coalition that could dominate American politics for a generation or more.” Instead, the purported realignment lasted a bit less than two years. To borrow one of the catch phrases of Red Sox radio announcer Joe Castiglione, the Obama presidency has been, politically at least, “a giant squander”.

But just how big a squander is it, historically speaking? One chart that made the rounds of the twitterverse this week indicates it was a very big squander indeed. It shows that Obama’s Democrats have suffered a net loss of 13 Senate and 77 House seats during the two midterms held in his presidency, which ranks as the third worst cumulative midterm seat loss among modern presidents, behind only FDR and Truman.

Obama losses

But is this really a useful metric? Roosevelt, who suffered the greatest cumulative seat loss, is nonetheless typically ranked as one of the nation’s three best presidents – someone who was the consummate political leader.  The problem with using total seat loss as a measuring rod is that presidents like FDR who enter office with substantial coattails, as indicated by large partisan majorities, and who serve the longest – both arguably measures of political skill – stand a greater probability of losing more seats. Moreover, looking only at midterms may not be a fair measure of a president’s party leadership since midterms operate under such unfavorable dynamics to the president. Perhaps a better metric is to assess the proportion of seats a president loses over the course of his presidency in all elections. This is not perfect, of course, because it still penalizes presidents who enter with a substantial governing majority – they have greater room to fall – but it is probably a better gauge of a president’s political pull than a raw seat count of midterms alone. Middlebury College student Tina Berger calculated that figure for all the modern presidents and summarized the totals in this chart.

Seats lostAlas, Obama does even worse by this standard – among modern presidents only Dwight Eisenhower lost a greater proportion of party seats across his presidency. The Republican Ike, however, presided in the midst of the post-Depression Democratic-dominated era (he was the only Republican president to serve between 1933 and 1969) and he managed to retain his personal popularity even as control of Congress reverted to what might be called its natural partisan state during this New Deal period. Obama, in contrast, has watched his popularity stagnate in the low 40% approval level for the better part of a year and with Democrats winning four of the last six presidential elections, it can hardly be called a Republican era (Karl Rove’s McKinleyesque visions notwithstanding.)

To be sure, not all of the blame for Democrats’ losses can be pinned on Obama. Surely the Party’s congressional wing is partly culpable for its dismal showing. Nor should we forget when judging his political leadership that Obama won reelection in 2012, and did so while helping Democrats net eight House and two Senate seats. The bottom line, however, is that in this era of nationalized politics, elections – even mid-year ones – are invariably in large part referendums on the president’s performance. And, at least by this one metric, Obama appears to have come up short.

Where did it all go wrong? Pundits are quick to blame the President’s detached leadership style but as I’ve noted in previous posts, it’s not clear how much temperament or character really matters. The fact is that Obama inherited an economic mess and a war on terror – two issues that defy easy solutions under the best of political circumstances. Moreover, as David Mayhew persuasively argues, the American system of separated institutions, each operating according to its own electoral clock and responding to different constituencies, seems to possess a systemic equilibrating tendency that prevents either party from holding onto strong majorities for very long, regardless of the president’s skills. In this respect Obama’s presidency demonstrated a not unexpected reversion to the political mean.

Still, I doubt very many pundits in 2008 predicted the speed and degree to which Obama’s governing majorities would dissipate – if they predicted dissipation at all. If one were to isolate one primary reason for this speedy partisan erosion, it is probably Obama’s decision to pursue health care reform despite strong Republican opposition and lukewarm public support. Along with the economic stimulus bill, health care proved to be the focal point of Republican resistance early in his presidency, and his failure to bring even a single Republican aboard when passing Obamacare cemented the partisan divisions that have come to characterize our national politics, and provided a rallying point for Republicans as they fought to regain partisan control of Congress. This is not to say pursuing health care reform was a mistake. It is to say that Obama – and his Democratic Party – paid a steep political price for doing so.

And so I wonder: as he contemplates finishing out his presidency facing two years of an opposition-controlled Congress, and with the fate of his signature piece of legislation now partly in the hands of the Supreme Court, does the President ever ask himself whether passing health care reform was really worth it?

Why The Economy Didn’t Help Democrats

I’m up today at U.S. News with a piece that examines why the improving economy did not help Democrats in the 2014 midterms even though economic growth was the primary reason Obama won reelection in 2012. Briefly, I think there are three related explanations:

First, as I noted in this Bloomberg interview, voters’ negative perceptions regarding economic growth lagged behind objective conditions, due in no small part to the incremental and uneven pace of growth.

Second, voters view economic conditions through their own partisan lenses, and with the midterm electorate shading more Republican compared to 2012, it’s no wonder more voters had a negative perception of the state of the economy.

Finally, many Democratic incumbents were reluctant to tie themselves too closely to Obama, and they also ran for Congress by running against it as an institution. It’s hard to claim credit for macroeconomic improvements when one is also implicitly criticizing the President and Congress.

I’ll be up with a separate post soon taking on some of the more prevalent day-after punditry that is crediting the Republican win to clever advertising, new turnout technology and spending by outside groups.


No, That’s Not The Message Voters Sent Yesterday

I’m working on about 3 hours sleep but wanted to give some initial thoughts regarding yesterday’s completely unexpected Senate and House results. At last check Republicans had picked up at least seven seats in the Senate, giving them a 52-43 margin (with two independents caucusing with Democrats.) However, with all the votes in, it appears that Republican challenger Dan Sullivan has ousted incumbent Democrat Mark Begich in Alaska, which would give Republicans 53 seats. Meanwhile, Virginia is headed to a state-mandated recount between incumbent Democrat Mark Warner and Republican challenger Ed Gillespie, and Louisiana will hold a runoff between Republican Bill Cassidy and incumbent Democrat Mary Landrieu in December. I suspect Cassidy will win the runoff, but there’s a good chance Warner survives the recount. So, conceivably Republicans could end up with 54 Senate seats which would be a net gain of nine.

In some ways the House results are equally impressive for the Republicans, given how few races were really up for grabs and the fact that Republicans went into yesterday already holding 234 seats. As of now it appears Republicans have netted 14 seats to push their majority to 243, but with results still pending in more than a dozen races that total could go up to as much as 19 seats gained. One has to go back to the 80th Congress (1947-49) to see a Republican House majority that big.

So, what are we to make of these results? To begin, it’s important to resist the inevitable tendency for pundits to overreach in their effort to discern “the message” the voters send yesterday. Already I am reading that the results indicate 1) a rejection of Obama,  2) a rejection of Democrats’ “war on women”  3) a rejection of Democratic liberal governance or maybe some combination of all of these. Some Democrats, not surprisingly, are suggesting that Republicans “bought” the elections due to backing from Superpacs.

The reality is that while this was a good night for Republicans, the results were driven by midterm election dynamics that political scientists have long documented. In this respect last night’s results were not unusual – nor were they even unexpected, at least based on fundamentals-driven forecasts. The most important point to remember is that the electorate in a midterm is different than what we see in a presidential election year, a point I made repeatedly last night. I haven’t seen turnout figures, but I’m guessing turnout was about 40%, down about 18% from 2012’s presidential election. More important than the size of the turnout, however, is its composition: yesterday it skewed older, whiter and more affluent than the electorate of 2012, and these are all attributes associated with a greater propensity to vote Republican.

More generally, the President’s party almost always loses House and Senate seats in a midterm – this is as close to a covering law that we have in political science. The magnitude of last night’s House losses by Democrats were surely attenuated somewhat by the fact that Republicans controlled so many seats, but nonetheless a net gain of 14-19 House seats by Republicans is well within the norm for a midterm election. On average, the president’s party loses about 28 seats in these midterms during the post-World War II era.

In the Senate Republicans did better, but not unusually so based on the fundamentals. As this chart indicates, political scientists who forecast the Senate race thought Republicans would pick up 8 seats based on the state of the economy, Obama’s approval ratings, and the prevailing view among most voters that America was headed on the wrong track.

Yes, this election was in part a referendum on Obama, but exits polls indicate that fully 45% of voters didn’t factor Obama’s performance into their vote at all, while 19% said their vote was meant to express support for him, so this can’t be viewed as a wholesale rejection of his presidency. More generally, when the economy is weak, the president suffers from low approval ratings and people are generally dissatisfied with the state of the nation, we should not be surprised that a Republican-oriented electorate dumped on members of a Democratic president’s party in Congress.  Indeed, the greater surprise would have been if Democrats somehow held onto their Senate majority in the face of these fundamentals.

Of course, elections have consequences, and yesterday is no exception. To me, the most important is that these results are not likely to reduce polarization in Congress. Consider the Senate Democrats who were turned out last night. David Pryor was the second most conservative Democrat in the Senate, Mary Landrieu (who may yet hang on) the third most, Kay Hagan fourth and Mark Begich 12th among the 55 Democratic/Independents Senators. It is almost certainly the case that the Republicans replacing them are not going to be more moderate, although I confess to not knowing enough about them to place them on an ideological scale with any great degree of confidence. Still, I’m fairly confident polarization is not likely to decrease during the next two years.

In looking ahead, my guess is that the Senate will become more unruly – not less so – during the next two years. This is partly because the Democratic caucus has shifted left with the loss of its more moderate members. But it is also because several conservative Senate Republicans – with at least one eye on a potential 2016 presidential run – will view this election as an opportunity to push conservative policies designed to appeal to the party base. As David Mayhew reminds, for legislators the payoff is more often in the position taken than in the legislative results. Similarly, I see no reason why Obama is going change his ideological leanings as a result of last night’s “shellacking” redux. Presidents – like any politician – are not infinitely malleable when it comes to ideology. They have core beliefs that guide their conduct, although in Obama’s case those beliefs sometimes appear frustratingly opaque. Rather than do a governing about face, Obama is likely going to accommodate Republicans when he can, but otherwise wield that veto threat to block Republican initiatives, just as Gerald Ford, the two Bushes and Bill Clinton did when they faced an opposition-controlled Congress. We may see legislation passed, but only where both parties see it in their own interest. In short, last night’s election is not likely to have affected the strategic calculus that has governed relations between Obama and Republicans to this date.

A final thought. As the table below indicates, we have cycled through almost every possible configuration of partisan control of our national governing institutions – a period of instability that testifies to the public’s apparent unwillingness to give governing power to one party or the other for any significant amount of time.

Picture2As long as individual Senators and Representatives believe that their electoral fortunes rest in part on the popularity of their party’s “brand name” among voters, and as long as the parties’ governing coalitions appear evenly matched even as they grow increasingly polarized in views, it remains the case that each side will usually conclude that it is not in their interest to compromise. And so we appeared destined to cycle through still another governing configuration.

Next up: the 2016 elections. Let the campaigns begin!