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
At the beginning of the Obama Administration Rahm Emmanuel was famously quoted as saying that you never want to let a crisis to go to waste. Never letting a crisis go to waste, however, creates one of the most important temptations-- and dangers-- of the modern Presidency: the tendency to turn to government by emergency as a means of ordinary politics. Government by emergency means characterizing situations as emergencies in order to shore up constituencies, discomfit opponents, gain extra powers, and generally get things done.
Government by emergency however, is like riding the proverbial tiger: if the public tires of the crisis, loses focus or no longer believes in the emergency as the President has explained it, the President has to come up with new emergencies to keep his political momentum going. This leads to the danger of Presidential Ponzi schemes, where each new emergency pays off the political debts of the previous one.
What is so remarkable about the Obama Presidency is that following the initial use of emergency politics to justify the stimulus Obama has largely refrained from invoking the politics of emergency. He did not do so in the health care bill. He has not done so in his terrorism policies (which are in many ways a continuation of George W. Bush's second term), and he has not done so in the recent crisis created by the oil spill in the Gulf. Obama has not used the occasion of the oil spill to seize the public's imagination and gain political advantages for possible goals like climate change legislation, energy legislation, environmental protection, or a second stimulus bill that would focus on energy, infrastructure, and cleanup.
To be sure, there appears to be very little that the President can actually do with respect to the Gulf Oil spill, but the point of the politics of emergency is to use the crisis to structure political realities, put opponents at a disadvantage and push for other things that the President would like to do. Many other politicians would have quickly found ways to frame reality and use the situation politically to their advantage; just as many, one suspects, would have immediately used the situation to demagogue to their heart's content. Certainly one cannot imagine a White House dominated by Karl Rove hesitating for a moment to use a crisis like the oil spill on behalf of President Bush's policies and to frame political realities to undermine if not silence opposition. (What the oil spill shows is that we need more tax cuts!) To be sure, Rove might have faced a much trickier problem than he did after 9/11 given the nature of the crisis and the Administration's ties to energy producers; but imagine if you will a left-wing version of Rove, as devoted to the Democrats' agenda (including environmental reforms) as Rove has been to the Republicans'.
Obama, at least so far, has largely refrained from the sort of tactics Rove and company delighted in. If anything, his reluctance to use the present crisis to his political advantage-- and to emphasize in various ways how little there is that one can do other than be patient-- has led the press (and his political opponents) to criticize him for not being more decisive, for not exercising more leadership, for not doing more to "kick ass," for not being more emotional, expressive, and bellicose, and so on.
These complaints about Obama's failure to-- in effect--engage in blatant use of the crisis to his own political advantage are a pretty amazing state of affairs. By now the American public and the American press have become so inured to (addicted to?) government by emergency that they seem to expect it from their leaders. In short, what the public and the press seem to want is presidents who will never let a crisis go to waste, and indeed, if there is no genuine crisis, will literally make one up as they go along.
In one sense it is admirable that Obama has been so reluctant to demagogue the crisis. (You can just imagine the things that he could have done to stoke up public resentment against oil companies, corporations, his Republican adversaries, and so on). But in another sense, it is a sad commentary on American politics that his failure to do so looks increasingly naive and foolish. Americans, it seems, want their Presidents to use crises to lead them. They like the politics of emergency, or at the very least, it is the politics that they have become used to. In the same way, much of the press views manipulating emergencies, as well as Clintonian "feel your pain" maneuvers, as precisely what bold and effective leadership consists in, at least in the twenty-first century. George W. Bush's finest hour, it seems, was when he stood at the debris at the World Trade Center, grabbed a bullhorn, and started talking about doing something. The fact that doing something eventually meant attacking Iraq-- which had no connection to the 9/11 attacks-- is beside the point, or perhaps more correctly, using emergency to justify policies you'd like to do anyway is the point.
I feel genuinely ambivalent about even suggesting that Obama should act a bit more like George Bush and Karl Rove would have in a similar situation. But Obama, who has proven himself a quintessential realist and accommodator, must somehow learn to accommodate the public's and the press's expectations of the modern Presidency, expectations that, I fear, are increasingly not in the best interest of the Republic.