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.

Will The Supreme Court Strike Down Parts of the Affordable Care Act? Potential Lessons From Political Science

By Scott Lemieux

The passage of health care reform has led to a considerable amount of speculation about whether the Supreme Court might strike down parts of the legislation.   The most plausible constitutional arguments surround the mandate that people who do not have insurance from another source purchase a policy through regulated exchanges.    How likely is it that the Supreme Court would strike down the centerpiece of the Obama administration's first-term agenda?

Some political scientists have developed models that attempt to explain and predict judicial decision-making.   To oversimplify, there are three major potential explanatory models.    The legal model predicts that judges are primarily motivated by a desire to reach the best outcomes as required by the law.   The attitudinal model predicts that judges are primarily motivated by policy outcomes.   The strategic model also assumes that judges are motivated by policy outcomes, but that to achieve desirable outcomes they will have to make compromises with other judges and also have to consider the possibility of retaliation from other branches.   (A completely sincere opinion that cannot attract the votes of any other justices does little to advance a justice's policy preferences, and an interpretation of a law that Congress overrules also fails to entrench the Court's preferences into law.)

What models might be applicable here, and what do they suggest about the likely outcome?

• It is very difficult for models to capture the ways in which the law affects judicial behavior.   Attitudinalists are quite persuasive that when it comes to Supreme Court votes on the merits, ideology is a good predictor of outcomes.   As the disagreement among legal scholars in the linked post above indicates, the Constitutional text does not settle the issues in this case; reasonable people can disagree about how the constitutional provisions apply.  However, this is not to say that the law is completely irrelevant.   Judges do show a certain reluctance to innovate, and  decision striking down the mandate would be at least somewhat inconsistent with recent precedent.    Since Supreme Court justices can overrule (or disgregard) their own precedents, past cases do not guarantee any future outcome, but they do make some arguments easier to make than others.   
• Although I have certain objections to the attitudinal model, as mentioned above I agree that it works quite well when applied to votes on cases that are ultimately decided by the Sureme Court. In terms of predicting the outcome of a challenge to the ACA, however, this means less than it might appear at first glance.    The model, first of all, says nothing about whether the Court will take the case in the first place.   In addition, in order to succeed a challenge to the law would almost certainly need the vote of Anthony Kennedy, whose record on federalism cases is somewhat mixed and unpredictable.    In a recent landamark federalism case, both Kennedy and his more conservative colleague Antonin Scalia joined the Court's four liberals to uphold the power of the federal government to enforce federal drug laws even if the behavior in question was legal under state law.   Chief Justice John Roberts and Samuel Alito are strong judicial conservatives, but do not yet have an extensive record on these questions.    Apart from Justice Thomas, past decisions do not strongly indicate that any justice would vote to strike down the mandate, but nor would they rule it out entirely.
• Strategic thinking by the judges may work against a decision in two respects.   First, striking down part of such important legislation may invite a political backlash on the part of Congress.   And, second, if the justices are considering policy outcomes striking down the mandate could perversely lead to a more liberal health care policy ultimately being enacted.   On the other hand, the Court does not always act strategically in the sense of avoiding political opposition, and by the time the Court heard a challenge the political context may well be more favorable to conservatives.        

On balance, political science models of judicial behavior would tend to suggest that the Supreme Court striking down the health care mandate is unlikely -- but not necessarily impossible.

The Changing Nature of Judicial Appointments

By Scott Lemieux

Given the age and health of Justices Stevens and Ginsburg, there is a very strong possibility that President Obama will nominate two more Supreme Court justices.  (Or, given the changes in the political climate, perhaps one should say that he will nominate as many justices as are necessary to fill two slots.)   This returns us to the question of what kind of justices Obama is likely to nominate.   Another way to examine the question is through the typology put forward by the political scientist Sheldon Goldman.    Goldman points out that presidents have three different major agendas when they make Supreme Court nominations:

• Policy.  Presidents usually want to advance certain substantive policy, legal, and constitutional ends.   While even justices who presidents are strongly confident share their basic orietnation may not agree with every substantive outcome a president may desire, but justices selected on ideological grounds (contrary to what you hear from some pundits) tend to be quite predictable.
• Partisan.   As with cabinet appointments, presidents use Supreme Court appointments symbolically, to signal support to important constituencies.    Part of the reason some observers assert that Supreme Court justices can be highly unpredictable is that they forget that some appointments are made primarily to advance partisan rather than policy agendas.   Eisenhower's appointment of William Brennan to appeal to Roman Catholic voters and Reagan's appointment of Sandra Day O'Connor to fulfill a campaign promise made to women are important examples of a president priveleging partisan goals over policy goals.
• Personal.   In some cases, presidents will use judicial appointments to reward friends and political allies.   Most of Truman's appointments fall into this category, as do JFK's appointment of Byron White and Lyndon Johnson's appointment of Abe Fortas.    

These agendas are not, of course, mutually exclusive.   Presidents can be fairly confident that personal allies will support them on the issues most important to their appointer, although they may (White being the classic example here) be less reliable on other issues important to a President's constiuencies.    A shrewd political pick can allow the president more leeway in terms of ideology.

Recent presidents -- and Obama seems likely to follow this trend in general -- seem to have largely abdandoned the third category.    Obama's nomination of Sonia Stotomayor was a good example of a contempoary nomination in that it attempted to advance both partisan and policy agendas at the same time: appeal to two increasingly important Democratic constituencies with a historic appointment, while also advancing important policy goals.   

In future appointments, of course, Obama may have to make tradeoffs between various goals.   Particularly in light of an increasingly recacitrant Senate, it will be interesting see if he attempts to put forward a clear liberal candidate at the risk of a fight, or if he chooses a more moderate candidate in the hope of better serving other partisan interests.  

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?

OBAMA AND THE COURTS II: THE STATE OF THE UNION CALL-OUT

By Scott Lemieux

I recently wrote about the possibility that Obama, facing a Supreme Court with a majority appointed by the previous Republican regime, might ultimately be embroiled in public conflict with the Court. I did not necessarily it expect to happen this quickly, but at last week's State of the Union Address President Obama expressed disagreement with the Court's recent Citizens United decision:

There is some disagreement about how unusual Obama's actions were. Certainly, there's nothing unusual about a President criticizing a Supreme Court opinion, and nor is it unprecedented for the President to engage in criticism of the Supreme Court during a State of the Union address. Other commentators have argued that the context of modern media -- having the Supreme Court in attendance on a live national television broadcast -- makes Obama's criticism of the Court new (and potentially disturbing.) The appropriateness of Obama's actions is, of course, a question of judgment. What will be more interesting to students of American government is whether or not conflicts with the Court will be a recurring pattern. It will also be interesting to see if Congress takes up Obama's suggestion to pass new campaign finance regulations to at least partially replace the legislation the Court struck down. But it's not surprising that some friction has emerged.

OBAMA AND THE COURTS

By Scott Lemieux

In my last post, I discussed the possibility that the Obama administration could represent a new, "reconstructive" era in American politics.   The political scientist Keith Whittington has noted that one characteristic of Reconstructive presidencies is clashes with the judicial branch.   Jefferson initiated substantial reductions in the power of federal courts he perceived as hostile, Jackson and Lincoln essentially ignored unfavorable Supreme Court rulings, FDR floated a court-packing plan to overcome a judiciary that struck down much of his first term's legislative agenda, and Regan promised to appoint judges hostile to many of the landmark rulings of previous Courts.  

The reason these patterns recur, of course, is that reconstructive presidents generally enter office facing a judiciary dominated by members affiliated with the previous regime.   This is, in substantial measure, true of the Obama administration --  before the retirement of Justice Souter 7 of the 9 members of the Supreme Court were Republican nominees, and the federal courts as a whole tilt strongly towards conservative Republicans.   And yet -- despite Democratic control by both branches -- Obama has moved more slowly on judicial appointments than his predecessor (who also faced an opposition party determined to slow the flow of nominees onto the courts.)

There are several explanations.   One is that Obama simply will not be a reconstructive president.    Another is that he may see fights as the federal courts as better resting on the back-burner until the debate over health care legislation has been resolved.    A final -- and to me, perhaps most convincing -- explanation is simply that the stakes for judicial appointments is less than it was for some previous presidents.   As Whittington notes, the increase of judicial power (that makes the kind of outright defiance more common in the 19th century all but inconceivable today)  has its source in the deliberate empowerment of the courts by the political branches.   One result of this is that the Supreme Court, while theoretically more powerful than it's ever bin, has avoided the kind of direct challenges to central parts of a current regime's agenda that the Court last tried during FD'Rs administration.    The Court's Raich v. Gonzales decision seems to signal that what some had called the Court's "federalist revolution" would be limited only to legislation of the most marginal importance.    Courts may be a low priority for Obama because he doesn't see them as a threat to the most important parts of his legislative agenda -- and despite the current Republican majority on the Court he may well be right. 

Are We Entering A New Era?

By Scott Lemieux

In his classic book The Politics Presidents Make, the Yale political scientist Stephen Skowronek argues that the basic structure of American politics can be broken down into a remarkably small number of eras:  The Jeffersonian (1800-1828), the Jacksonian (1828-1860), the Republican (1860-1932), the New Deal (1932-1980), and the Reagan Revolution (1980-?).    Once we understand the basic politics of a period, we can see presidents facing recurring political challenges that are comparable to a number of past presidents.  Skowronek uses four categories, based on 1)the health of the dominant regime and 2)the president's relationship to that regime:

For the most recent political era, Reagan was the reconstructive president, challenging existing political and constitutional understandings with substantial success. Both Presidents Bush were "affiliated" presidents, articulating and extending the politics initiated by Reagan. (Except for the fact that he won re-election, George W. Bush is comparable to Lyndon Johnson, in that the regime reached its apotheosis under his administration, but in many respects the dominant regime's underlying political coalition collapsed.) Clinton -- who Skowronek, remarkably, predicted could face a serious impeachment treat just after his re-election -- was a "pre-emptive" president, attempting to keep a minority political coalition together while collaborating in important respects with the dominant regime.)

Which brings us to an interesting question -- does the Obama administration represent a new political era?    In a sense, the success (or lack thereof) of his proposed health care reform represents the first major test.   If major legislation reflecting a different understanding of the role of government passes, combined with such factors as some clashes with federal courts still largely under the control of the Reagan regime and electoral validation in 2012, we may in retrospect see the 2008 election as pivotal.  Conversely, if Obama cannot secure re-election and his legislative accomplishments are more limited or less durable than might be expected, the Obama administration could be seen as a failed pre-emptive president in an overwhelmingly Republican era.     Which do you see as more likely?    

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?

Hecklers From the Back Benches

Two days ago, President Obama gave a speech on health care reform. At one point in the speech, he said that there were many misconceptions about his plan out there. He said that there would be no "death panels" for old people to determine whether or not they should receive expensive, life-saving procedures. He also said that this plan would not cover illegal aliens. From the audience, Congressman Joe Wilson from South Carolina shouted out "You lie!"

I was watching Obama's speech on CNN's website and I had Twitter up on another window. I use Twitter to follow various political pundits and activists. Their reaction to Wilson's remark was instantaneous. Within seconds, someone had identified who he was. Minutes later, his wikipedia page was changed. One hour later, prominent bloggers had identified who his opponent was in the upcoming election and called for donations to his campaign. Two days later, that opponent has received campaign donations for more than $700,000.

As a scholar of Internet politics, I am fascinated by the dialogue that occurs on the Internet, as well as the speed that information flows and the ability to form rapid responses. Some have said that Twitter has been used most effectively by conservatives. The Joe Wilson incident certainly shows that liberals are also using Twitter effectively.

On a morning news show this morning, one pundit said that Joe Wilson's shout demonstrates that the weakening respect for the presidency, which began in the Clinton administration and has only accelerated. I'm not sure if that's true or not. Nixon and the Watergate scandal was a serious blow to the presidency. No president will ever win the awe and respect of the public and the media as the pre-Nixon presidents.

The Wilson incident also brings up the question of how Congress should behave. Traditionally, the Congress in the United States has always been formal. Congressional representatives refer to each other as the "Fine Senior Senator from New York" and decorum is maintained during discussion periods. Legislative bodies in other countries are much more boisterous. There are shouts, heckles, and cheers from the backbenches during speeches and debates. Here's a sample of a debate in England's Parliament:

As a result of a two word shout from Congressman Wilson, he's going to face a tough fight in November and he's had to apologize to the president for his behavior. It was shocking by American standards, but it's commonplace elsewhere.

Do you think that Wilson's comments were disrespectful and disruptive of intellectual debate? Do you think he should receive censure from Congress? Or do you think that Congress should start behaving more like Parliament? Is there something very democratic about those shouts from the backbenches and the questioning of presidents and prime ministers?

Exceptions to the First Amendment

Last week, the Obama administration reversed an 18-year ban on news coverage of the return of war dead, allowing photographs of flag-covered caskets when families of the fallen troops agree.

The ban was put in place during the first Gulf War, because the administration felt that these images were too powerful. No Americans would agree to go to war, they argued, if they were forced to view those powerful images. Since national security requires that the public is willing to defend its nation, the press has not been able to publish these photographs for 18 years.

The First Amendment clearly states that Congress shall make no law abridging the freedom of speech or the media. The United States takes its First Amendment very seriously and, as a result, we have one the freest presses in the world. Yet, the Supreme Court has ruled that there are certain important exceptions to these freedoms.

Freedom of speech and the press does not permit libel. If a newspaper publishes lies about you that damages your reputation, you have the right to sue them in court and seek monetary compensation. The Courts have clearly ruled that obscenity is not permitted free speech. However, the language regarding the definition of obscenity is so broad that, in effect, there are few regulations on pornography.

The other exception to the freedom of the press involves national security. The press can be prevented from publishing information that could result in harm for our troops or endanger the nation as a whole. No newspaper would be permitted to publish the  coordinates of our troops in Afghanistan or provide information about our defense systems. However, the courts have had stated that the government must be careful to not overstep this right to withhold sensitive information. (See the Pentagon papers and The New York Times v. United States (1971).)

The images of dead coming home from war in flag draped pine boxes is  a powerful image. There's no doubt that that there is a dead person inside, and it resonates much more with the public than abstract casualty numbers. Some say that had the public seen the images of dead soldiers coming back from Europe, we would have never fought WWII.

Other say that the public has a right to see these images in order to better understand all the facts of the war. If the press is prevented from publishing these pictures, then they may be prevented from publishing other relevant facts. They also say that the photographs have no direct impact on national security, and therefore these restrictions endangered the First Amendment.

Drawing lines between permissible speech and dangerous speech is a constant challenge for the Supreme Court. Do you believe that the Obama administration made the right decision in this case?