an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Obama's Second Term: A Preemptive or a Reconstructive Presidency?
During the past two weeks, I have written a pair of essays for the Atlantic Online applying Stephen Skowronek's theories of presidential leadership to a Mitt Romney presidency and the second term of an Obama presidency. The essay on Romney is here, and the essay on Obama, published yesterday, is here.
The prospects for a successful Romney presidency are not all that good, in large part because the Reagan regime has gotten pretty long in the tooth, and Romney will find it difficult to please all of the factions of his increasingly radical and unruly party. At best Romney will be an affiliated president fairly late in the Reagan regime, and if so, Romney will not only face the problems of factionalism and challenges from his right, but also considerable pressure to use military force. It's also possible--and perhaps even more likely, given the age of the Reagan coalition--that Romney would end up as what Skowronek calls a disjunctive president, bringing the regime to a close. The Romney essay explains these conclusions in more detail.
The issue for Obama is different. As an opposite-party president in a conservative Republican regime, his position is quite different from Romney's, who, whether he likes it or not, is affiliated with Reaganism and faces pressures to hew to party orthodoxy.
Over the last several years here at Balkinization, Gerard Magliocca, Mark Tushnet and I have debated how best to characterize Obama's presidency. As of now it looks as if Obama is another preemptive president in the mold of Bill Clinton, swimming against the tide of conservative Republican politics, and forced to compromise and triangulate in order to survive. Therefore he is likely to perpetually disappoint members of his own party, even as he perpetually enrages members of the other party.
Nevertheless, Obama still has a shot at being a transformative (or what Skowronek calls a "reconstructive") president like FDR or Reagan. The key moment will come in January 2013, when the new Senate meets for first time and the nation confronts the "fiscal cliff." Obama's chance at being a reconstructive president, I argue, depends on (1) getting behind reform of the Senate rules-- which are a major impediment to political change; and (2) allowing the Bush tax cuts to expire and the sequester to go into effect. For reasons explained in the Obama essay, doing so gives him maximum bargaining leverage and creates the possibility of breaking the Republican stranglehold on domestic policy. Obama will only have a narrow window of opportunity to effect lasting change, so he must take maximum advantage of it.
If Obama fails, then his second term is likely to be less about domestic transformation than about playing defense, and he will probably turn his attention to questions of foreign policy, issues which, I should add, are hardly insignificant.
Moreover, to the extent that Obama is a preemptive president, there is a chance that scandals may develop in his second term that will lead the Republican House to consider impeaching him, as they did with the last preemptive president, Bill Clinton. Rep. Issa has been hard at work attempting to uncover such a scandal, and one assumes that he and his Republican colleagues will not let up in Obama's second term.
Of course, the Republican Party might shy away from this path because many people believe that the Party's reputation was damaged by the Clinton impeachment. Nevertheless, that was fifteen years ago, and the public may have forgotten. Moreover, the current House is, if anything, more radical than it was in the 1990s and it despises Obama every bit as much as the Gingrich-era Republicans hated Clinton.
If Obama is elected, it promises to be an interesting four years.