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
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
The Puzzle of President Obama and the Reconstructive Presidency
I would like to thank Professor Balkin for the opportunity to join this fascinating discussion. That discussion, as this post’s title indicates, is how to place President Obama in Stephen Skowronek’s political time model. Gerard Magliocca, buoyed by the ACA surviving a second Supreme Court review in King v. Burwell, wondered if Obama’s presidency might now be considered reconstructive. Jack responded with a thoughtful post noting that political time (or Ackermanian “constitutional moments”) are best observed in hindsight—if Hillary Clinton, the presumptive Democratic nominee, wins in 2016 this certainly changes the hue of Obama’s presidency. That is, if the Democrats prevail in the next two or three presidential elections, perhaps Obama will be looked at as reconstructive a decade hence. These questions are not simply confined to the academy. Peter Beinart recently wrote a much discussed piece in the Atlantic arguing that Obama’s presidency, in ways inadvertent and intentional, has moved the country to the left. While Beinart did not cite Skowronek’s work, in important ways he (Beinart) was making a political time argument. Jon Cohn, writing for the Huffington Post,quoted two academics with diametrically opposed views on the success thus far of Obama’s second term.
What ties these pieces together are the same overarching questions some posed in 2008—is Obama a reconstructive president? is he merely preemptive?—and still linger nearly eight years later. After President Clinton fit neatly within the political time model as a preemptive president (impeachment and all), and George W. Bush appeared to be the quintessential orthodox-innovator, Obama’s presidency has tantalized political time theorists. Indeed, despite the fact that Skowronek has contemplated that a reconstructive presidency may no longer possible and that political time has waned, some political time devotees continue to add further postulates and conditions to the theory. Curt Nichols and Adam Myers make the novel argument for a multiple-presidency reconstruction here. Nichols, in a paper with Daniel Franklin, argues that Skowronek himself presented too crabbed a definition of reconstructive presidencies—to their mind Skowronek “downplayed” (or failed to include) the reconstructive presidencies of Theodore Roosevelt and Reagan. Others, like political scientist Julia Azari (a student of Skowronek), have argued Obama is best thought of as preemptive.
Both lines of thinking appear problematic.
Obama’s presidency, to my mind, is good evidence that political time is not just “waning,” (as Skowronek wondered in 1993 when The Politics Presidents Make first appeared), but has perhaps reached an end at least with respect to reconstructive presidencies. First, it is difficult to believe that Obama’s presidency—even with the benefit of hindsight—will be thought of as reconstructive under any available definition. The sine qua nonof a reconstructive president is to sweep away the old regime and its ideological commitments. Jefferson smashed the Federalists. Jackson swept away prevailing attitudes about executive deference to the legislative and executive branches. Lincoln rejected the Democratic Party’s slavery-based politics as “perverting” constitutional principles. FDR threw out the “money changers” of the failed Republican order. Reagan exposed the frailties in the New Deal coalition and called for a return to the Constitution as “conceived by our Founding Fathers” (though it is must be noted that Reagan’s reconstruction was more rhetorical than substantive). In other words, a reconstructive president resets the political logic of his moment in political time.
It is unlikely Obama’s presidency will compare favorably to these reconstructive presidents. Among the most obvious points is that both the House and Senate are controlled by Republican majorities. While Reagan suffered mid-term setbacks, Obama’s losses have been historic and no other reconstructive president is historically comparable. Under FDR, for example, the Democrats gained seats in 1934, and it was only after his failed Court-packing plan that he suffered mid-term losses in 1938. Since 2010, significant legislative achievements, an integral aspect of a modern reconstruction, have been impossible. Political scientist Lee Drutman has made the case that it is Republican dominance which will mark the near future. Perhaps most telling: a 4.6 percent increase in the top marginal tax rate for the 2 to 3 percent of individuals making more than $250,000 annually was cause for a major political battle. Simply put, it seems apparent in real time that Obama has failed to sweep away the political and rhetorical logic of the Reagan Revolution. (It is “underreported” that Obama and Axelrod read Skowronek’s work which influenced Obama’s rhetoric on the 2008 campaign trail and his political team’s hope for a reconstructive presidency).
Moreover, even if one wants to place more play in the joints, as Nichols and Myers do, for a reconstructive presidency there are extensive hurdles for this conception to become reality vis-à-vis Obama. (To be clear, Nichols and Myers have not made the argument that Obama’s presidency is reconstructive or the beginning of a multiple-presidency regime change). Analysts largely agree that a Democratically-controlled House is unlikely until at least after 2020 when district lines for the House can be redrawn. Therefore, in order to pass legislation that would help fit Nichols and Myer’s stylized definition of a new regime (i.e., build on Obama’s policy achievements), the Democratic presidential candidate would have to, in the least, win office in 2016 and 2020, and the Democrats would have to take back control of the House and the Senate. An electoral run like this seems implausible in light of our whipsaw elections of the past two decades.
And there is yet another challenge if one wants to argue that Obama is reconstructive (again, even with the benefit of hindsight): the burden then is to show how Bush was disjunctive rather than an orthodox-innovator affiliated with the New Right. Bush would be the first two-term disjunctive president in the political time model. Bush’s presidency was far from a success, but to say he presided over the end of the New Right seems difficult in light of the Tea Party-fueled insurgency during Obama’s tenure.
At the same time, Obama’s presidency fits rather uncomfortably within the preemptive typology. There is no historical analogue to Obama in political time’s catalogue of preemptive presidents. Recall that preemptive presidents articulate a “third way” to solve the political problems of the day. But in doing so, Skowronek argues, this makes them sensitive to the “authenticity issue.” Thus, preemptive presidents tend to pick a “signature issue” in keeping with their party’s ideological priors: “Cleveland and the tariff, Tyler and Texas, Wilson and the League of Nations, Clinton and health care.” However, Skowronek writes, “each of these initiatives were turned against its sponsor, with devastating effect.” (Of the other two preemptive presidents, Eisenhower worked within the framework of the New Deal, and Nixon largely built up a domestic policy record that was in keeping with the broad outlines of that coalition.)
But the passage of the ACA alone—perhaps the most significant piece of social legislation since the 1960s—sets Obama apart from these “third way” presidents. No other preemptive president can claim the policy and political success of Obama. While, for example, Nixon and Clinton passed important pieces of legislation, that legislation was not diametrically opposed to the political logic of prevailing regime. Nixon signed into law, for example, the Clear Air Act of 1970 (and created the EPA), while Clinton passed welfare reform and enlarged the carceral state. (A telling anecdote: Clinton, early on in his presidency, told staffers “We’re all Eisenhower Republicans”). Conversely, the ACA and Dodd-Frank rather plainly do not fit within the larger ideological commitments of the New Right. Indeed, the vicious fight in Congress and the legal attacks on the ACA (that appeared to have largely been ended by Chief Justice Roberts’ “SCOTUScare” opinion in King v. Burwell) is strong evidence of Obama’s straddling the typologies. He is either the “strongest” preemptive president to date or the weakest of the reconstructive presidents. This is precisely why he defies categorization, and why commentators have not reached anything approaching a consensus.
What best explains this? In 1993, Skowronek insightfully noted the “thickening” of the state as problematic for reconstructive presidencies. Steven Teles’ notion of “kludgeocracy” is a similar idea. These insights help elucidate the limits of a reconstructive presidency going forward. Kludgeocracy made it difficult for Reagan to sweep away the New Deal’s entrenched programmatic liberalism (and liberal interests groups battled for the status quo). This is why Reagan’s reconstruction was more rhetorical than substantive.
Nichols thinks otherwise. In making his case for Reagan as truly reconstructive he contends: “when Reagan announced, in his first inaugural address, ‘government is not the solution to our problem; government is the problem,’ he was proclaiming his order shattering warrants.” But this ignores that Carter said much the same in 1980: “We believe that we ought to get the Government’s nose out of private enterprise in this country.” And one must not forget Carter’s 1978 State of the Union address: “Government cannot eliminate poverty or provide a bountiful economy or reduce inflation or save our cities or cure illiteracy or provide energy.” Reagan has certainly come to be seen as the standard bearer of this rhetorical device, but he seemed to be articulating what was already becoming “political commonsense.” At all events, the received wisdom that Reagan’s presidency was not fully reconstructive needs no revision—the state was already too thick.
Now consider Obama’s presidency and the thick state. While the ACA and Dodd-Frank are impressive pieces of progressive legislation, they are both examples of kludgeocracy: the latter piece of legislation is 383,013 words, or approximately 55,000 words longer than the ACA. In short—and to keep this post from sprawling—it appears there is too much policy kludge for a president, even one with the majorities in Congress such as Obama enjoyed in 2008-2010, to truly effect the sweeping change of a Jefferson, Jackson, Lincoln, or FDR (and FDR faced his own version of kludgeocracy). Even with a unified government, kludgeocracy limited Obama’s presidential aspirations to “smash,” “shatter,” or “reorder” the New Right. In much the same way, Reagan’s effort to reconstruct the New Deal’s welfare state was more rhetorical than substantive because of this same phenomenon. (It seem important to note that on some level Obama’s race has to be factored into his failed reconstruction. As Michael Tesler argues in a forthcoming book: “the election of President Obama helped usher in a most-racial political era where racially liberal and racially conservative Americans were more divided over a whole host of political positions than they had been in modern times.” What is more, research has shown that those who self-identify as Tea Party members are more racially conservative).
But maybe Obama really is simply another preemptive president. If so, according to the logic of political time, the New Right is not quite dead and will recapture the White House in 2016—there have never been three preemptive presidents elected in succession. Perhaps Marco Rubio (or Ted Cruz, or, less plausibly, Jeb Bush) will be the disjunctive New Right president the political time model predicts. Then the fever, as Obama hoped in 2012, will break and (say) President Julian Castro will emerge as the latest iteration of a reconstructive president. Or perhaps Hillary Clinton will be elected to two terms, the Democrats will recapture control of Congress in 2022 (and perhaps the Court), and Nichols and Myers’ approach will be vindicated.
I am skeptical of such a scenario. To be sure, political time is an elegant theory and illuminates US presidential history in important ways. And it seems difficult to grapple with the broad sweep of American political history without subscribing to some sort of periodization (even if it be undertheorized). But President Obama’s tenure has highlighted serious fissures in political time. With the current thick state, order shattering may no longer be plausible. And perhaps that is a good thing.
Calvin TerBeek is a PhD student in the political science department at the University of Chicago.You can reach him by e-mail at cterbeek at uchicago.edu