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
Over the past several years, Gerard Magliocca and I have had a discussion on this blog about Obama's presidency employing Stephen Skowronek's ideas about presidential leadership. (For previous discussions, see here, here, here, here, here, here, and here, and this post by Calvin TerBeek responding to both of us.)
In particular, we have discussed whether Obama is a "reconstructive" president along the lines of Jefferson, Jackson, Lincoln, FDR and Reagan, or a "preemptive" president like Cleveland, Wilson, Eisenhower, Nixon and Clinton.
In the former case, Obama would begin a new political/constitutional regime that succeeds the Reagan era regime in which we have been living since the 1980s. In the latter case, we are still living in the Reagan regime and Obama has been an oppositional figure attempting to swim against its powerful tides, further galvanizing his opponents in the process.
I have pointed out that we only know the answers to these questions in hindsight. A central limitation of Skowronek's model of presidential leadership is that it is backward-looking rather than predictive. It helps us to understand where we have been, rather than where we are going. At most it can help us frame some of the possibilities about the likely direction of future events.
If Hillary Clinton had succeeded Obama, that would have been strong evidence that Obama was a reconstructive president and that we had entered a new political era. In almost every case in which one party began a string of three or more consecutive elections winning the presidency, the person who began that string of victories was a reconstructive president. (The central exception is McKinley in 1896, who is followed by Roosevelt and Taft). Conversely, there are no cases of reconstructive presidencies (Washington, Jefferson, Jackson, Lincoln, FDR, Reagan) in which the other party took the White House after two terms.
One of the reasons for this tendency is that if a president's party wins the White House over and over, the president's achievements are likely to be lasting, and the federal courts are likely to stocked in the party's favor and will construct constitutional doctrine accordingly. Conversely, if a president's party loses the White House after two terms, it is easier to undermine or reverse that president's accomplishments.
Now that we know that Clinton will not succeed Obama, it seems much clearer that Obama is a preemptive president and not a reconstructive president. The pieces of the story begin to fit together. Although Obama campaigned as a reconstructive candidate, offering hope and change, once in office he found himself opposed at every turn by powerful forces of conservative politics that reflected the political regime in which he still operated. That regime, although weakened by time, was nevertheless still strong enough to check his reconstructive ambitions. And the more Obama succeeded, the more he galvanized opposition, not only from establishment Republicans, but from new insurgencies like the Tea Party and Trumpism. Unlike FDR and Regan, Obama did not overcome his political opponents. Rather, like Nixon and Clinton, he enraged them.
Obama accommodated himself to those forces as best he could. He borrowed ideas from his political opponents and recast them in liberal terms. His health care reform, for example, was based on Republican ideas-- a national version of Romneycare. But after the Tea Party revolt and the 2010 elections, further legislative reforms were effectively foreclosed and Obama was forced to make a humiliating accommodation in the Debt Ceiling Crisis of 2011. Obama was unable to pass immigration or environmental reforms and instead turned to administrative regulations to achieve his goals. Many of his domestic achievements are now vulnerable to reversal.
Far from dismantling the National Surveillance State and the War on Terror begun by George W. Bush, Obama consolidated and continued them. He tried but failed to disentangle the country from Bush's misadventures in the Middle East, in many ways expanding and perpetuating American commitments there.
Although Obama brought many new voters into politics, and although he began to form a new coalition that may someday replace the dominant Reagan coalition, his victories in 2008 and 2012 did not mark a fundamental shift in electoral politics.
Like many preemptive presidents, Obama had a number of significant accomplishments; indeed, despite the level of opposition he faced, he is probably the most successful domestic president of the last half century. Like Eisenhower and Clinton, he ends his two terms quite popular (at least by the standards of today's strongly polarized politics). Nevertheless, he also sparked fierce opposition by the regime's dominant party (the Republicans). He produced two insurgent political movements in reaction to his policies (the Tea Party and Trumpism), and he failed to fundamentally change the condition and direction of American politics.
It also now seems clearer that Obama's immediate predecessor, President George W. Bush, is not a disjunctive president, like Hoover or Carter, who stands at the end of a regime and who cannot prevent the dissolution of his party's coalition. Rather, Bush is a relatively unsuccessful version of an "affiliated president"-- in this case, a president affiliated with the Reagan regime. Like other affiliated presidents, Bush sought to continue Reagan's model while innovating in changed circumstances. For most of his presidency, Bush kept the different factions of his party together (his response to the 9/11 attacks helped enormously in this respect). Yet he ended as one of the most unpopular presidents of the modern era. In hindsight, Bush seems like a poor man's version of Truman or LBJ. In the long run, he may hope to be remembered far more fondly, as both Presidents Truman and Johnson were. But he lacked the accomplishments of either man.
If Bush is an affiliated president and Obama is a preemptive president, what are the opportunities for President Trump? That is the subject of my next blog post. Posted
by JB [link]