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
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.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
On the eve of his first State of the Union Message, it looks as if Barack Obama has decided not to try to become a reconstructive president. Instead, he seems to accept that the basic assumptions of American politics still remain set by the previous reconstructive presidency, that of Ronald Reagan, and he is willing to work within them. This makes Obama more like Bill Clinton, Grover Cleveland, and Richard Nixon, and less like Franklin Delano Roosevelt. He becomes, in Steve Skowronek's terms, a preemptive president who works within a political regime that is largely hostile to his aims, accepting its basic premises and making comparatively minor adjustments.
Many people, myself included, believed that the 2008 election would usher in the end of the Reagan coalition and create the opportunity for a reconstruction of American political assumptions, led by a reconstructive President. But Obama has largely defied these expectations.
Liberals have criticized Obama for not being sufficiently liberal and too middle of the road. But the larger issue is not whether Obama is liberal or centrist. It is whether he is willing to remake the political assumptions of the political world he inherited or whether he is willing to accept them and live within them.
As Sandy Levinson and I predicted, Obama has largely continued the construction of the national surveillance state and followed many of the anti-terrorism policies of the Bush Administration while eschewing only their worst features.
Domestically, Obama has effectively conceded that the Republican party's vision of the world is correct and that the greatest danger to American prosperity comes from increased government spending during a time of recession. Hence his proposed spending freeze on non-discretionary spending. This freeze is transparently a gimmick. But it is important because it suggests that Obama has chosen to accept Republican themes and play politics on Republican terms, even though his party controls the Presidency and both houses of Congress. Although he himself knows better, Obama has decided to adopt a public stance that is actually pre-Rooseveltian in framing how to deal with a severe recession.
Obama also seems, for now, to have accepted that his signature domestic initiative, health care reform, is going nowhere and will have to be put on the back burner.
This is not what reconstructive presidencies are made of.
The problem is not that he faces severe impediments to reform. Generally speaking, reconstructive presidents always face genuine institutional obstacles to reform and nevertheless find ways to circumvent them or to smash through them by appealing to the public for authority to remake politics. As of now, Obama has decided not to even try. This suggests that he is (not yet) attempting to be reconstructive.
The major obstacle to reform at this point is the United States Senate, and its filibuster and hold rules, which, in the last two decades have developed into powerful weapons for limiting what the President and his party can do. Senate Republicans have adopted a systematic policy of blocking any significant measures (and most significant appointments) that Obama seeks. They wish to cripple his Presidency so they can replace him in 2012.
Until the loss of the Massachusetts Senate seat, Obama and his allies believed that they could make progress by getting unanimity within the Democratic caucus in the Senate. The loss of the 60th seat removes this possibility. It means that Obama faces a crucial impediment that he must overcome if he wants to remake American politics.
If Obama wants to be a reconstructive president, he needs to directly confront the forces that hinder reform and get the public behind him in his efforts to overcome them. Put differently, Obama needs his own version of FDR's ultimately successful confrontation with the Supreme Court. Although he is popular with the public, Obama (so far) has not really attempted anything like this. Quite the contrary, he has shied away from confrontation, while his political opponents have chosen confrontation and intransigence as their preferred strategies. So far, even with drastically reduced power in Congress, they have largely succeeded. Obama is hamstrung; he cannot make key appointments to the executive branch, he has made only a few appointments to the federal judiciary, his signature domestic imitative has stalled, and a good many of his planned legislative initiatives seem to be going nowhere.
It is no answer to say that the real problem with Obama's presidency is largely out of his hands, because his authority depends on the unemployment numbers, and he can do little about unemployment. Obama could do something about increasing employment if he needed only majority votes in both houses to pass legislation. The problem is his inability or his unwillingness directly to confront the institutional features that hinder successful reform and would make his presidency successful.
Obama has not used the power of the Presidency to challenge the forces that obstruct him and to reframe political realities in a way that makes reconstruction possible. The public does not fully understand the institutional reasons for Obama's setbacks and his political enemies have won the war of framing Obama's policies in their worst light. For example, Americans do not believe that the stimulus was money well spent and they believe that the health care bill will increase deficits (when it is actually designed to reduce them). Again, this is not what reconstructive presidents do. If Obama continues on the course he has begun, he looks to be far a less successful president than Bill Clinton. And Bill Clinton was impeached.
There is still time, of course. Andrew Jackson did not become a truly reconstructive president until his second term in office. But one does not begin a reconstructive presidency by apologizing to one's political opponents and giving in. At the end of his first year, Obama seems to have responded to adversity by capitulation, and to opposition by throwing in the towel.
Surely he can do better than this. Or can he? That is the difference between a reconstructive president and a preemptive one.