Everyday Politics Blog

The President and Executive Power

By Scott Lemieux

Some court observers who might generally be considered allies of President Obama have expressed concerns about the solicitude for executive power shown by Obama's second Supreme Court nominee, Elena Kagan.    There is at least some evidence for claims that, while Kagan is unlikely to support the strongest claims of executive power advanced by the Bush administration, she is likely to give a much wider berth to the executive branch than many liberals and libertarians would prefer.

Beyond Kagan's (very thin) record of views on the subject, there is a more general reason for suspecting that Kagan might disappoint some supporters of the President on executive power.   The punchline to the article I discussed in my last post is that the intersection of law and politics can be expected to lead to judges who are deferential to claims of executive power, especially during wartime.  According to Graber, from a standpoint of judicial behavior, the process might be expected to look like this:

• "Judge Strategy," whose overriding concern is insulating the Supreme Court from political pressures than might undermine judicial power in the long run, can be expected to favor executive power in most circumstances.    There are some exceptions -- as two landmark Supreme Court opinions have demonstrated, when the president and/or the war the president supports are relatively unpopular, the Supreme Court has shown some willingness to constrain the power of the executive branch.   Still, there is generally a "rally effect" on public opinion during times of war, and as result strategically-minded judges are likely to tread with extreme caution in evaluating claims of executive power during wartime.    
• "Judge Attitude," who decides cases based on her policy preferences.  In theory, this judge would favor controversial claims of executive power half the time, but as Graber notes in practice "attitudinal" judges are likely to favor executive assertions of power much more frequently.   The president, after all, does the nominating, and is likely to "screen" for justices who will be sympathetic to future assertions of executive power.   The effect is likely to be heightened during wartime, or during "reconstructive" administrations in which the president is trying to expand his political authority.    
• As a result, as precedents build, "Judge Legal" -- who prefers not to innovate and is likely to follow precedents unless they clash with very strongly held preferences -- is also likely to support assertions executive power.   A majority of relevant precedents will compel deference to judicial power, and even cases in which the Supreme Court rejects particular claims of executive power generally leave significant leeway for future courts to approve different assertions.

If this argument is right, then neither Obama's priorities nor Kagan's relative sympathy towards executive power can be considered a surprise.   Rather, her nomination (for better or worse) is part of a long-standing trend.

Why Change Is Difficult

In 1964, voters sent a new, young generation of Democrats into Congress. Lyndon Johnson won a landslide election against Barry Goldwater. With Democratic control over both Congress and the White House, Johnson and Congress passes a series of major legislation, including The Civil Rights Act of 1964, Medicare, and Medicaid. Another group of laws were passed aimed at reducing poverty, improving education, and improving life in inner cities.

Regardless of your opinion of the outcome of these laws, there is no question that major change happened in 1964, and it happened quickly. These laws marked a sharp departure from the past. Government bureaucracy, as well as the federal budget, ballooned in size. Lives changed.

When Obama came to office last year with a Democratic majority in both houses of government, many thought it was 1964 all over again. He promised major legislation in health care, education, and infrastructure.

One year later, Congress still has made no progress on health care. Their Democratic majority is slowly eroding, and the public has grown cynical.

Why was Johnson so successful in 1964, and Obama has not yet passed health care reform?

There are many possible answers to this question. Instead of giving you one definitive answer, I'll propose three possible answers to that question and let you debate this matter in class. 

1) Some might point to intervening variables, including the failing economy and the wars in Afghanistan and Iraq. In 1964, the economy was booming, and Americans were wealthier than ever before. They were more willing to part with the tax money than Americans are today.

2) Stephen Skowronek, in addition to coming up with this nifty model for classifying presidents, wrote that it has grown increasingly difficult for presidents to make change in the United States, because of the thick layers of bureaucracy that have formed and the customs that have arisen. In the past, when a Reconstruction President came to office, it was easier for him to act as a "battering ram" and create new orders. Now, even strong, talented presidents can only make small, incremental changes.

Skowronek might say that bureaucracies and powerful interest groups have arisen in the past several decades, and they have a strong interest in perpetuating the status quo around health care policy. They drag down the system and prevent change.

3) Others might argue that Obama is having trouble today, because all change is difficult in the United States. 1964 was the outlier or an anomaly. What made 1964 significant wasn't the party composition of Congress, but the mood within the country, which was unusually optimistic and in agreement that change needed to happen. That broad agreement and optimism from within the public was a freakish blip in our nation's history.

That unusual public spirit is the only way that radical change can happen in our country, because our governmental system was designed by James Madison, the master worrier. Madison was terrified of rapid change. He worried that with the increasing the franchise, the unwashed masses might make unreasonable and unwise demands of their government, so he put in all sorts of fail safes into the constitution. There are checks upon checks and a million ways for bill to go off course. Just look at how difficult it has been for the conference committee to find compromise between the Senate and the House versions of the Health Care bill.

Which explanation seems most plausible to you? Do you have a better answer to the question?

Partisanship and Media

Michael Xenos

Recently there has been a fair amount of buzz surrounding White House comments about Fox News, including statements about whether it is a “real” news network and the extent to which administration officials would treat it as such.  The conflict has provided a veritable treasure trove of grist for pundits on the right and left, and it has also drawn a fair amount of interest from regular citizens interested in politics. An interesting sampling of the latter can be found in the comment feed associated with a recent New York Times article on the issue.

One of the benefits of a class such as the one you’re taking lies in its ability to put things like this in context.  Indeed, that’s one of the points of this blog as well.

If you were in a history class, you might be reminded of the various other presidents from earlier eras that have taken similarly aggressive stances toward the media, typically with poor results (e.g. Grant, McKinley, FDR, Nixon, see here for a discussion of this). In a political science course, however, perhaps the most important contextual information comes from research on the increasingly partisan nature of media consumption. In other words, comments from current administration officials may be similar to historical statements like Spiro Agnew’s famous quip about “nattering nabobs of negativism," but there is a new wrinkle in the sense that the current comments belong to a qualitatively different media environment with respect to news programming and political partisanship.

As Laura mentioned in a previous post, scholars have suggested that one of the byproducts of our new media environment is that people have much more control over what they watch, listen to, and read than they once did, and this has implications for how the media and politics are related.  Think about your parents or grandparents for example, and how they had to walk across the room to turn a heavy, clunky knob in order to change the channel on the television.  The walking was strenuous, but don’t feel too bad for them. They typically had only 3 or 4 channels to choose from. In contrast, today we have a practically unlimited variety of content to choose from at any hour of the day or night. The political implications of this are that many people now exercise a fair amount of filtering with respect to how and where they get political news – liberals can watch MSNBC and read the Daily Kos while conservatives can watch Fox and read Hot Air. (The two blogs mentioned here represent the most influential liberal and conservative blogs, respectively, as measured by political scientist David Karpf’s useful Blogosphere Authority Index.)  As far as cable television news goes, one is reminded of Stanford professor Shanto Iyengar’s research on partisan preferences for news content, which uses a clever experiment to demonstrate that there are clear differences in how liberals and conservatives react to identical headlines and news stories, based on which network they are attributed to.  (For the original paper, click here; for a more accessible write up in the Washington Post, click here.)  At the same time, researchers like Princeton’s Markus Prior suggest that an even bigger trend is for many people to exercise their newfound range of content choice to avoid political content altogether in favor of more entertaining programming.

So, it may be useful to think about some of these trends as you hear or perhaps even participate in more partisan discussions of these matters.  Do you see variation in the amount and kinds of political media consumed by you and your friends based on their levels of interest in politics and partisan leanings?  What implications does this have for how you think about the current flap between the White House and Fox News?

Making Sense of Public Opinion on Health Care Reform

Michael Xenos

While there are many issues facing the government right now, health care reform is undoubtedly an item near the top of the policy agenda. As Scott’s recent post points out, major reform efforts such as those surrounding health care right now are especially difficult in a political system such as ours.  Nevertheless, as the discussion on this morning’s Meet the Press shows, supporters of reform like White House Senior Advisor Valerie Jarrett believe there is strong momentum on health care reform and we seem to be nearing what host David Gregory calls “brass tacks time” on the issue.

Visit msnbc.com for Breaking News, World News, and News about the Economy

Visit msnbc.com for Breaking News, World News, and News about the Economy

In news coverage of the health care debate, which according to one estimate is about 10% of all news stories right now, we hear a lot about public opinion on health care reform. Opponents are quick to tout polls that paint a picture of rising opposition to the reform packages being considered in Congress, while supporters point to majority approval of various key provisions of the plans under discussion.

Informed consumers of public opinion polls typically make sense of individual results by looking to factors such as whether the poll is based on a scientifically sound random sampling technique, what population is being sampled (for example, the general public or “likely voters,” which may be defined in a number of ways), the specifics of question wordings, and other factors known to have a strong influence on the numbers and their implications. For complicated issues such as health care reform, it is also helpful to seek more in-depth analysis provided by public opinion experts. In the past, this kind of analysis was difficult to find.  Now, however, there are a variety of resources available online, such as pollster.com and others I’ll mention below, that offer valuable insights for understanding the flood of sometimes conflicting and confusing poll numbers we are seeing in the media.

On the health care issue, for example, the non-partisan Pew Research Center for the People and the Press recently issued an informative report on health care opinion. (Readers of one of my previous posts will be relieved to know that these researchers are keenly aware of the contemporary difficulties surrounding telephone polling, and regularly integrate cell-phone users into their surveys.) Their report provides a detailed account of the mixed picture created by support for specific provisions alongside opposition to broader packages.  By way of explanation, they suggest that “[t]he disconnect between support for specific elements of health care legislation and overall opposition to the proposals in Congress appears to be driven by a lack of understanding about what is being proposed, the complexity of the topic and declining trust in Congress.” Indeed, in a separate survey probing what the public knows about various issues in politics, the Pew researchers found that only 56% of their respondents recognized “the public option” as a part of the current health care reform debate (as opposed to pertaining to Energy and the environment, Banking reform, or Unemployment), with 33% confessing that they didn’t know what issue it was related to and 11% incorrectly guessing one of the other options.  Polling expert David Moore further emphasizes this aspect of public opinion on health care in a post on his blog, SkepticalPollster.com.  In discussing some of CNN’s polling on the issue, Moore suggests that “the dysfunctional results can be found in a question that was not reported on CNN’s website, politicalticker, but was posted in its archive. When asked how much they knew about the details of Obama’s health care proposals, almost six in ten respondents admitted that they knew little to nothing – after having just opined about them during the previous twenty-minute survey. Only 11 percent said they knew “a good deal.””

Hopefully, as the policy process moves forward, more Americans will become more informed about this major policy issue.  Conventional wisdom tells us that when that happens we will see opinion become more stable and less confusing. In the meantime, we should be aware of this important facet of opinion on health care and take this as a good opportunity to think and talk about key aspects of public opinion in American Government courses.

Senate Vacancies

By David Watkins

The big news in American Politics today is obviously the arrest and charging of Illinois Governor Rod Blagojevich on a host of corruption charges. Blagojevich has been under federal investigation for some time. Amongst other charges, Blagojevich is accused of threatening to withhold state assistance for the sale of Wrigley stadium by the owners of the stadium, The Chicago Tribune company, unless some members of the editorial board critical of the governor were fired. Obviously, this kind of abuse of power is a big deal, and a direct threat to the ideal of a free and independent press.

This part of the story, important as it is, is almost certainly going to be overlooked in light of the charges that Blagojevich was attempting to, in essence, sell a Senate seat. Barack Obama's six year Senate term has two years remaining. Blagojevich, as Illinois governor, has the right to appoint someone to fill that seat for the remainder of the term. The full text of the criminal complaint is available here. One this subject, the colorful Blagojevich is reported to have said:

“unless I get something real good for [Senate Candidate 1], s**t, I’ll just send myself, you know what I’m saying....And if I don’t get what I want and I’m not satisfied with it, then I’ll just take the Senate seat myself.”  Later, ROD BLAGOJEVICH stated that the Senate seat “is a f**king valuable thing, you just don’t give it away for nothing.”

Later in the conversation, ROD BLAGOJEVICH said he knows that the President-elect wants Senate Candidate 1 for the open seat but "they're not willing to give me anything except appreciation. F**k them."

Setting aside the ethics and the law for a moment, Blagojevich is certainly correct about one thing--the senate seat he has the power to appoint is a valuable commodity indeed. It's just for two years, initially, but as all students of American politics know, incumbency advantage is a powerful thing, and his appointee, as a Democrat, would have a particularly strong advantage in Illinois, an overwhelmingly Democratic state. Under normal circumstances, it takes the most talented and popular politicians millions of dollars and a fair amount of luck to win a seat in the US Senate.

If you find it odd that we'd give this kind of power to a single person, you're not alone. In both the United States and Democratic countries around the world, the norm is to hold special elections to fill mid-term vacancies in legislative bodies. The House of Representatives follows this norm. In the US Senate, however, things are different. The 17th Amendment to the US Constitution governs Senate Vacancies:

When vacancies happen in the representation of any State in the Senate, the executive authority of each State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

State legislatures have responded in a variety of different ways. Oregon and Wisconsin do not empower the governor to fill vacancies: they require special elections to fill the seat. Other states place restrictions on who the governor can appoint to fill the seat--by requiring them to fill the seat with someone of the same party as the departing senator (Hawaii, Alaska, Arizona) or by allowing the Governor to choose between three individuals put forth by the state legislature (Utah, Wyoming). More about the different ways states approach this issue can be found here. Dick Durbin, the sole Senator from Illinois, suggested this morning that the Illinois legislature "enact a law as quickly as possible calling for a special election to fill the Senate vacancy of Barack Obama."

What explains this unusual state of affairs? The 17th amendment, ratified in 1913, is mostly known for mandating the direct election of Senators. Previously, the selection of Senators was governed by Article one, section 3 of the Constitution, which granted the power to appoint Senators to the state legislatures. In essence, the current patchwork of policies governing interim appointments are a holdover from an era in which the Senate was not meant to be a democratic body. Today, the idea that the Senate should be selected through democratic process is widely accepted (although some conservative proponents of "states rights," notably former Georgia Senator Zell Miller, argue for its repeal), but many undemocratic features of the Senate remain. The Blagojevich corruption scandal reminds us of the potential costs to the alternatives of democratic decision-making.

In my "Citizenship and US Politics" course this term, we spent some time debating the case for abolishing the US Senate. Of course, this is a profoundly unrealistic goal, as it's very difficult to imagine a supermajority of US Senators, let alone the small states that benefit from overrepresentation in the US Senate, agreeing to this idea. Nevertheless, it's an interesting exercise to try to defend the Senate on principled grounds. The students who were assigned to argue for keeping the Senate found it more difficult than they had anticipated.