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Recess Appointments and President Obama’s Surprising Restraint

Posted by Peter M. Shane on January 6, 2012

For all the brouhaha surrounding President Obama’s recess appointments this week of three new members for the National Labor Relations Board and of Richard Cordray to serve as director of the Consumer Financial Protection Bureau, what is most surprising – and most welcome from a constitutional perspective – is the President’s restraint in his use of the recess appointment power. What’s scary is the precedent it may set for other Administrations’ less judicious use of that power.

Article II of the Constitution authorizes the President “to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” The Constitution does not require that the recess be of any particular length or for any particular reason. The Senate was out on a three-day hiatus when President Obama made his appointments. His act squares neatly with the constitutional text.

Some observers may be confused by the Article I provision stating: “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days . . . .” Because the House (at the behest of Republican Senators) is currently not allowing the Senate to adjourn for more than three days, the Senate has been going through a repeated ritual of convening in “pro forma” session every third day, but without any capacity to do legislative business. (Harry Reid invented this technique in 2007 to forestall recess appointments by George W. Bush.) But there is no constitutional requirement that a Senate recess triggering the President’s appointments power be an adjournment to which the House of Representatives has consented.

The most colorable objection to the Obama recess appointments is that they arguably flout a norm, or informal custom, of interbranch interaction. That is, Presidents ordinarily do not resort to their recess appointment power during short recesses. It is understood on both sides that the Framers originally contemplated a Congress that would convene only a few months a year. They gave the President a power of recess appointment so that he could keep the government functioning effectively even when federal legislators had returned to their far-flung farms, law offices, or other places of non-government business. Recognizing that the recess appointments power was thus conferred for a limited purpose and not in order for Presidents to lightly circumvent the Senate’s confirmation role, Presidents have typically – though not invariably – used their recess appointment power sparingly. (A good nonpartisan account appears here.)

As I argued in my 2009 book, Madison’s Nightmare, norms of this sort are essential to the effective functioning of any separation of powers system – perhaps to any non-dictatorial system of government at all. A system of separated powers can work only if each branch refrains from pressing its powers to the utmost limits of textual plausibility under a written Constitution. However aggressive the interbranch competition for policy influence, each branch must ultimately respect the purposes and capacities that the Constitution assigns to its sister branches. From the end of the McCarthy era through the end of the Carter Administration, Congress and the executive typically acted in this spirit of mutual restraint, even as the country navigated its way through the upheavals of Vietnam and the civil rights revolution.

Since the Reagan Administration, however – and most especially since the second Reagan Administration – these norms have been under steady attack. The attackers usually – though not invariably – are right-wing Republicans who quite correctly view a checks and balances system as an obstacle to their capacity to jerk our national government onto a profoundly more conservative course than is warranted by public sentiment.

For example, nothing in the Constitution explicitly forbade the Reagan Administration to circumvent the appropriations process and fund its own foreign policy in Central America. Nothing in the Constitution explicitly rejects lying about a sexual affair as a ground for impeachment. Nowhere does the Constitution impose a time limit on Senate consideration for routine executive and judicial appointments. But the Iran-Contra affair, the Clinton impeachment, and the GOP use of the Senate filibuster to impose unprecedented delays in staffing both the executive and judicial branches nonetheless stand out as breaches of constitutional governance. These practices may or may not be unconstitutional, but they exhibit a glaring disrespect for the purposes and capacities assigned to non-GOP-controlled government institutions.

Seen in this light, President Obama’s recourse to his recess appointment power was really the only plausible way of responding to a pattern of Senate behavior – induced by the Republican minority – that paid no regard to his authority and obligation to appoint officers of the United States to a host of positions critical to effective governance. It is notable that he targeted his latest appointments with just that limiting principle in mind – that is, he filled vacancies only in agencies that were utterly disabled from carrying out their legally assigned missions because leadership nominations were languishing in the Senate.

Constitutionally, President Obama could have gone further. He could have filled other executive branch positions that the Senate has been holding hostage for reasons unrelated to the merits of the nominees. He could have filled judicial vacancies. He could have used his power under Article II to adjourn Congress, thus creating his own recess of the Senate during which he could make these appointments.

That President Obama has not gone to these lengths demonstrates a commendable inclination to continue to respect the Senate’s confirmation power. It also continues a tradition of making recess judicial appointments only in extremely rare circumstances, in large part because – although such appointments are constitutional under the text – their limited duration stands in tension with the Framers’ conspicuous commitment to judicial independence, embodied in the constitutional guarantee of lifetime tenure.

Some Senate Republicans have apparently reacted to President Obama by threatening to be even less cooperative with the executive branch. But it’s hard to see how much less cooperation they could offer. The intransigence of the House Tea Party Caucus, plus the GOP Senate minority’s filibuster abuse, has rendered the 2011 session of Congress the least productive in terms of non-trivial legislation since the late 19th century. The White House has correctly discerned that the public has tired of this obstinacy. As Larry Lessig has said, our uncooperative Congress has earned approval ratings probably lower than the approval ratings of Parliament in the thirteen colonies on the eve of the American Revolution. (One suspects, if the public were yet more familiar with the bills the House was trying to pass, its opinion would actually be even lower.) For this reason, the White House is surely undaunted by the prospect of congressional hearings examining its appointments powers. The charts and graphs the Administration can produce illustrating the current Senate’s unprecedented delays for even the most routine appointments would make for impressive video.

The real danger in the latest recess appointments is that subsequent Presidents may well use President Obama’s expansive understanding of “recess” to staff courts and agencies with controversial nominees who they know Senators are opposing on the merits. In a fine analysis of the situation, Larry Tribe has argued that the Cordray and NLRB appointments do not “free the president to make recess appointments whenever the Senate breaks for lunch or takes routine weekend vacations that conceal no objective scheme to frustrate presidential appointments.” He concludes that “the president can resort to recess appointments of this kind only in instances of transparent and intolerable burdens on his authority. Article II charges him to ‘take care that the laws be faithfully executed’; this duty, combined with appointment and recess-appointment powers, requires an irreducible minimum of presidential authority to appoint officials when the appointments are essential to execute duly enacted statutes.”

I have two related fears about this speculation, however. The first is that, although Professor Tribe has stated an excellent limiting principle for the exercise of the recess appointments power, it is not clear that courts would enforce it. Federal courts typically resist getting in the middle of power clashes between the elected branches, and sorting out which recess appointments are and are not proper under even a normatively compelling (and easy to enforce) constitutional principle may simply be a job they are unwilling to do.

My second fear is based on the right-wing’s willingness – even eagerness – to accelerate whatever innovations in interbranch struggle that the Democrats originate. The Democrats want to filibuster appellate court nominees? Fine, the Republican will filibuster trial court nominees. A Democratic Senate majority comes up with an “in forma session” ruse to try to stop a Republican President from making recess appointments? Fine, a GOP Senate minority will seek to accomplish the same result by enlisting the GOP House majority to stop the Senate majority from adjourning. Talk about using a constitutional power for an unintended purpose!

President Obama’s most recent recess appointments are themselves a modest counterpunch against attempts by House and Senate Republicans to subvert his capacity to perform his constitutionally assigned role. If the Senate wants the President to back off, it should start performing its confirmation role responsibly. If recent history is any guide, however, Republican leaders – who no doubt hope to control both ends of Pennsylvania Avenue in 2013 – will be thinking up rather different contingency plans should divided government persist. These plans are likely to intensify an already corrosive breakdown of interbranch norms of respect and cooperation that are the key to effective governance.

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Memo to Obama: Use Market Jitters to Seize the Initiative

Posted by Peter M. Shane on August 10, 2011

Thanks to the debt ceiling deal no one liked, official Washington seems poised now to wait for a cumbersome congressional process to drag the country again through an extended spectacle of pathetic political gamesmanship. Critical points on the time line between now and January 1 include the end of the fiscal year (September 30), at which point the government shuts down unless appropriations are enacted, the November 23 reporting date for the congressional Committee of Twelve, and the December 23 deadline for a congressional vote to head off sequestration. As things stand, we can expect an eleventh-hour, 59th-minute political nightmare on each of these dates.

Here’s an idea for the president: Don’t wait. Seize the initiative. Offer a progressive plan within the next two weeks, and demand Congress enact it by the end of the fiscal year.

The parameters for the plan should be straightforward. The Committee of Twelve is supposed to produce $1.5 trillion in deficit reduction. Make $2 trillion your target. But achieve half that deficit reduction through revenue enhancement and economic growth generated by a redirection of government spending away from low-return subsidies and towards investment in infrastructure, the clean energy sector, and research and development, plus short-term stimulus through extended unemployment insurance and a payroll tax moratorium.

And now for the hard part: Announce you are putting on the table the option of an October 1 government shutdown unless Congress enacts a plan that you find acceptable – a plan that must be jobs-and-growth oriented, protective of the middle class, and focused on revenues, not just cuts. (At the very least, this will tempt the GOP to taunt you with a continuing resolution too good not to sign.)

You will be standing on high ground. Just keep repeating the words, “families,” “middle class,” “growth,” and “jobs.” The markets want to see the United States take actual leadership and show it can address problems before we have a gun, already cocked, to our collective head. Please lead the way.

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What the President Should Say If Congress Misses the Debt Ceiling Deadline

Posted by Peter M. Shane on July 28, 2011

My Fellow Americans:

Today, for the first time in American history, the Congress of the United States has effectively prohibited the government from paying its bills. In the last 50 years, the debt ceiling has been raised 74 times, ten of those times since 2001. Those votes have been bipartisan. They have occurred under both Democratic and Republican presidents. They have been all but universally regarded as essential to preserving the full faith and credit of the United States. Yet a minority faction of today’s congressional representatives — in the face of proposed deficit-cutting plans with overwhelming support from the American people — has taken the unprecedented step of allowing us to slide into potential default.

As a result of this inaction — this betrayal of the trust of the American people — we must face a hard truth. If the government continues to spend the funds Congress has already appropriated at the rate Congress anticipated when it appropriated those funds, we will simply run out of money before the end of the fiscal year. We will face an across-the-board government shutdown, with no end in sight. We cannot let this happen.

Because this situation is unprecedented, there is simply no clear law to guide my actions in response to this crisis. Read literally, the Congressional Budget and Impoundment Control Act of 1974 allows me to defer spending that Congress has already authorized on the basis of what that statute calls “contingencies.” It has been argued that I may use that authority to choose selectively, designating obligations to meet now and obligations to defer in order to avoid a shutdown of government services. At the same time, I am also aware of arguments that the Act does not give me such authority — that a statute intended to control impoundments cannot faithfully be interpreted to allow a president to postpone so much spending at his sole discretion. If these critics are right — if the Impoundment Act does not give me such authority — then my decisions not to spend money on particular programs would violate the many statutory provisions under which Congress mandated that those funds be spent.

It has also been argued that Section Four of the Fourteenth Amendment allows me to ignore the statutory limit on incurring government debt. That section provides, “The validity of the public debt of the United States, authorized by law . . . shall not be questioned.” Some legal scholars argue that this provision authorizes the president to continue borrowing whatever funds are necessary both to meet our obligations to creditors and to continue funding government programs at the levels Congress has already approved. I have already expressed my doubts about the validity of this interpretation. I have been inclined to agree with those who read Section 4 as obligating Congress to provide for the repayment of debt, not to permit the president to ignore statutory limits on borrowing.

The fact is, however, that I am now faced with a no-win choice. I could cease government borrowing and defer some government spending, on a selective basis, under the uncertain authority of the Impoundment Control Act. But that would risk violating the many statutory provisions under which Congress has provided for government spending. I would risk disabling key government programs from operating effectively. Alternatively, if I continue government borrowing under the uncertain authority of the Fourteenth Amendment, then I will certainly be violating the statutory limit on federal debt and I will perhaps be misinterpreting our most fundamental law.

Let me clear about this conundrum. The Constitution obligates the president to “take care that the laws be faithfully executed.” I cannot duck that obligation. Yet, if I rely on one statute to withhold some government spending in order to advance what I regard as our critical priorities, then I risk violating some of the statutes through which Congress has directed the executive branch to spend money. The government spends only money that Congress appropriates; spending as Congress directs is, in most cases, a legal obligation. On the other hand, if I continue borrowing to fulfill these congressional mandates and to repay government debts that were lawfully incurred, then I am violating the debt ceiling and risk misinterpreting the scope of the Fourteenth Amendment. The legal path is not clearly marked either way.

Faced with this choice, I am compelled by both conscience and necessity to take the latter option. Deferring government spending under the Impoundment Control Act would require me to claim unprecedented discretion to pick and choose among programs that Congress has already determined to move forward. It would also leave the full faith and credit of the United States at risk, and impose numerous and unforeseen hardships on Americans who depend on the smooth and efficient operation of government programs already in place. If, however, I breach the statutory limit on borrowing, my assertion of power under the Fourteenth Amendment has a clear limit.  I can borrow no more than required in order to repay those debts that have been already been incurred pursuant to law without curtailing those government programs for which Congress has appropriated funds.  This is not a blank check. It is fulfilling a set of mandates that Congress itself has imposed.

I have thus decided to continue borrowing funds on behalf of the United States in order to repay those debts that have been already been incurred pursuant to law and to continue those government programs Congress has already authorized. In so doing, I believe I am faithfully executing both Congress’s current appropriations statutes and the intent of the framers of the Fourteenth Amendment to insure that the federal government would never repudiate its lawfully incurred obligations.

I would welcome congressional action to ratify this decision by statute. I would welcome even more the kind of balanced approach to debt reduction, deficit-cutting, and revenue enhancement that I have been urging on Congress for months and that can finally put our fiscal house in order for the next decade and beyond. Until Congress can reach some such agreement, however, I owe it to Congress and to the American people to stave off irreparable economic harm and to keep in effective operation the functions of our federal government for which Congress has already provided and on which the American people rely.

Thank you, and may God bless you and the United States of America.

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What May a President Do if He Cannot Pay Our Bills Without Borrowing and Borrowing More Money is Unlawful?

Posted by Peter M. Shane on July 19, 2011

An obvious question, should Congress not manage to fend off default within the next two weeks, is: What does the President do then?  If the President cannot pay off America’s creditors and keep all government programs running, what legal authority does he have to deal with the crisis?

A little history helps to put the answer in context.  In the nineteenth century, Congress simply did not have a budgeting process.  It appropriated funds for various federal purposes, confident that customs revenues would outpace federal spending.  In the unlikely event – unlikely, that is, before the Civil War – that appropriations outpaced revenues, Congress implicitly left it to the President to keep expenditures and revenues in line by not spending appropriations that were permissive rather than mandatory.

Congress did not adopt a formal budgeting process until 1921, when it created the Bureau of the Budget (now, the Office of Management and Budget) in the White House and the Government Accounting Office (now, the Government Accountability Office).  The 1921 Budget Act was the first to task the President with presenting Congress each year with a proposed budget for its consideration.

Flash forward now to the Nixon Administration.  Congress had created a statutory framework to help structure the exercise of executive branch spending discretion.  But Nixon, misinterpreting nineteenth century practice, insisted he had inherent constitutional authority to “impound” – that is, not spend – government funds that he thought had been unwisely appropriated.

In the wake of Watergate and in response to Nixon’s abuses of impoundment power, Congress rebelled.  It said, in effect, that whatever authority presidents enjoyed to manage government funds was a consequence of authority delegated to the President by Congress, either implicitly or explicitly.  And to prevent any future claims of inherent presidential impoundment authority under the Constitution, Congress enacted the Congressional Budget and Impoundment Control Act of 1974 (ICA).

Simplifying things a bit, the ICA can be understood as dividing presidential decisions not to spend appropriated money into two categories – rescissions and deferrals.  Rescinding funds means never spending them; deferring funds means not spending them right away.

The ICA basically took away any presidential right of rescission.  If the President wants to cancel altogether some congressionally authorized spending, he must send his recommendation to Congress.  The rescission then occurs only if, within 45 days, Congress enacts a new statute approving the proposed non-spending.  In other words, unless Congress affirmatively approves the President’s decision, sooner or later, he has to spend the money Congress appropriates for mandatory expenditure.

In 1974, however, Congress treated deferrals differently.  Presidents could propose to defer authorized spending for a fixed period of time, and those proposals would take effect unless either the House or the Senate voted to override the proposal – a so-called legislative veto.  The problem with this arrangement turned out to be that legislative vetoes are unconstitutional.  So said the Supreme Court in 1983.

At that point, the question became:  Did the President now retain his authority to defer spending, no longer subject to a legislative veto?  The U.S. Court of Appeals for the District of Columbia Circuit answered, “Sometimes.”

Sometimes, that is, Presidents want to defer spending because they think Congress did the wrong thing in funding a particular project or activity.  Deferring spending on such programs really amounted to a policy objection to Congress’s approved programs or activities.  According to the D.C. Circuit, the Supreme Court’s decision to nullify legislative vetoes effectively took the President’s power of “policy deferral” away.  Congress would never have enacted any policy deferral authority in the wake of the Nixon Administration, unless it knew it could retain legislative veto authority.  In “law-speak,” “policy deferral” authority could not be “severed” from the legislative veto.

Sometimes, however, presidents want to defer spending because, however, unobjectionable a program, deferring spending is necessary to provide for unforeseen contingencies.  Sometimes, for example, deferred spending enables the government to achieve savings through unanticipated efficiencies or changes in program requirements.  Such “programmatic deferrals,” according to the Court of Appeals, were still permissible.  They were instances of good management, not policy resistance.

Reacting to this decision, Congress amended the ICA to reflect the policy-versus- program distinction.  The ICA now basically prohibits “policy deferrals,” but allows “programmatic deferrals.” The President may recommend deferrals to achieve savings or otherwise “to provide for contingencies.”  Such deferrals take effect unless Congress affirmatively legislates to overturn them – which, of course, the President may veto if he chooses.

So, this is where the President would stand on August 2 if informed that government spending at current rates cannot continue without further borrowing, which, in turn, would violate the statutory limit on incurring government debt.  The President could claim authority to defer government spending in such amounts as necessary to avoid further borrowing.  He would presumably cite as his legal authority 2 U.S.C. sec. 684(b)(1), which authorizes deferrals “to provide for contingencies.”

Of course, exercising his statutory “programmatic deferral” authority in this way would be deeply ironic; the President could select expenditures to defer or not defer only by making policy judgments about spending levels that are different from the policy judgments that Congress enacted in its appropriations Acts.  In the words of separation of powers scholar Louis Fisher:  “Recognizing a broad power of impoundment by the President to handle the federal government in the absence of a higher debt limit would permit the President to radically change budget priorities by deferring this but not that — precisely the same kind of power that got Nixon into trouble.”

And yet there seems no other option.  If there is not enough money in the till to pay all the bills that are due and further borrowing is impermissible, something has to give.  The idea that the Fourteenth Amendment empowers the President to unilaterally raise the debt limit is implausible.  The President has statutory authority to respond to contingencies; he would have to use it.

Because nothing in the ICA would instruct the President on what basis to choose appropriations to defer – that is, what commitments not to keep — he would have to decide, on his own initiative, what projects and activities to put on hold to keep from violating the law.  Congress would thus have tacitly abdicated to the executive branch a huge swath of the power over government fiscal policy that the Framers quite deliberately vested in Congress.  The results, for good government — and certainly, for government as know it — would be calamitous.

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Not Defending DOMA: A Conscientious and Responsible Decision

Posted by Peter M. Shane on February 25, 2011

A distinguished fellow law professor, Adam Winkler, has recently argued that the Obama Administration’s decision not to defend the constitutionality of the federal Defense of Marriage Act (DOMA) is an abdication of the responsibilities of the presidential office.  He wrote:  “For decades, presidents, Democrats and Republicans alike, have taken the position that it’s the executive’s obligation to defend the constitutionality of all federal laws. The basis for this view is the Constitution’s command that the president ‘shall take Care that the Laws be faithfully executed.'”

This position, however, is wrong on history and reflects an incomplete reading of the Constitution.

In analyzing this question, it’s important to distinguish two very different things:  the executive duty to carry out the law and the President’s duty to defend statutes challenged in court.  On the first matter, Attorneys General have long set a very high bar before opining that the executive branch can decline to carry out the law.  In 1919, Attorney General A. Mitchell Palmer, justly infamous on other grounds, penned a line that Attorneys General have consistently followed on the issue of whether questionable laws should be enforced:  “Ordinarily, . . .it is not within the province of the Attorney General to declare an Act of Congress unconstitutional–at least, where it does not involve any conflict between the prerogatives of the legislative department and those of the executive department.” 

The only likely defensible exception to this stance would occur if Congress were to enact law plainly violating well-established constitutional rights.  Thus, for example, if Congress purported to reestablish racial segregation in D.C. public schools, the executive branch could rightly decline implementation.

In reaching this position, Attorneys General – like Presidents – have to take into account two different provisions of the Constitution.  One is the “Take Care Clause” mentioned by Professor Winkler.  The central purpose of that clause is to prohibit the executive suspension of statutes, a key protection for the integrity of the legislative process going back to the 1688 Declaration of Rights in England. 

The other provision, however, is the presidential oath, which requires Presidents to “preserve, protect, and defend the Constitution” – presumably, all of it.  In carrying out laws that the President regards as unconstitutional, he might seem to be in violation of this straightforward vow.  But, regarding unconstitutional laws, the courts are available to protect the public from their operation.  The danger to constitutional checks and balances of allowing Presidents simply to ignore laws they disagree with is too obvious and too grave to be ignored.  Presidents simply have to strike a balance.  And, with regard to legal implementation, the right balance is, almost always, to carry out the laws Congress enacts.

Defending laws in court is a different matter for three obvious reasons.  First, the executive is not claiming to have the final say on legal implementation — or even interpretation.  The challenged law will remain on the books – and enforced – unless the courts rule otherwise.

Second, the executive stance does not deprive the law of defenders.  In the case of DOMA, for example, courts are likely to allow Congress to intervene and offer a defense.  This is exactly what happened when the executive branch declined to defend the constitutionality of the legislative veto in the 1983 Chadha case.

Third, government attorneys are officers of the court.  As advocates, they are bound by professional and ethical norms.  An important question, then, for the Justice Department is how far to go in pressing arguments in a judicial forum if the Department does not think the arguments are valid. 

President Reagan’s first attorney general, William French Smith, articulated a very restrictive stance on this question:  “In my view, the Department has the duty to defend the constitutionality of an Act of Congress whenever a reasonable argument can be made in its support, even if the Attorney General and the lawyers examining the case conclude that the argument may ultimately be unsuccessful in the courts.” 

His immediate predecessor, however, Benjamin Civiletti, staked out a position that left more room for discretionary judgment.  In a letter to a Senate committee, he wrote:  “The Attorney General has a duty to defend and enforce the Acts of Congress. He also has a duty to defend and enforce the Constitution. If he is to perform these duties faithfully, he must exercise conscientious judgment. He must examine the Acts of Congress and the Constitution and determine what they require of him; and if he finds in a given case that there is conflict between the requirements of the one and the requirements of the other, he must acknowledge his dilemma and decide how to deal with it. That task is inescapably his.”

Attorney General Holder’s letter explaining the decision not to defend DOMA represents a rigorous and conscientious implementation of the Civiletti view.  It does not deny, as Civiletti went on to say, that “when the Attorney General is confronted with . . . a choice, it is almost always the case that he can best discharge the responsibilities of his office by defending and enforcing the Act of Congress.”  But it also does not portend any executive branch power grab.  Taking this careful, highly deliberate step in defense of what the President and the Attorney General take to be the right view of the Constitution is consistent with the best interpretation of the executive’s obligations towards the Constitution and the rule of law.

In short, one may debate the Attorney General’s legal analysis – although, for the record, I agree with it.  In taking their stance, however, President Obama and the Attorney General have acted well within the institutional norms long followed, to good effect, by their predecessors.

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The Eisenhower-Obama Doctrine? Ending the Military’s “Blank Check”

Posted by Peter M. Shane on December 2, 2009

In the current political climate, the most dramatic point of President Obama’s West Point speech on Afghanistan. was neither his commitment of additional forces or the precise timing to begin a drawdown of our troops.  It was his determination to apply cost-benefit analysis to our military commitments.

Of course, it helps a President who has not served in the military if he can cite an iconic general for what should be a common–sense point.  So, he invoked Dwight D. Eisenhower for the doctrine:  “Each proposal must be weighed in the light of a broader consideration: the need to maintain balance in and among national programs.”

In post-Eisenhower Washington, this is revolutionary stuff.  As progressives propose initiative after initiative to improve the health, education and welfare of the American people, we are continually pounded by ominous predictions of ruinous cost.  Yet, when it comes to national defense, there appears to be no ambition too excessive, no cost too burdensome, no deficit too large.

By reciting what we might now call the Eisenhower-Obama Doctrine, President Obama, to my mind, is setting the stage for the rest of a two-term presidency.  He inherited, as he frequently reminds us, two wars, a huge budget deficit and an economy on the brink of depression.  He is willing to devote much of his first term energies to cleaning up the inherited messes in the economy and national security.  What he is not willing to do is put off the pursuit of other critical national priorities indefinitely. 

In a wise essay,  Jacob Weisberg recently predicted that Obama, by State of the Union time, is likely to appear as having accomplished more in the first year of his presidency than any chief executive since FDR.  Like Weisberg, I do not believe Democrats will scuttle health insurance reform altogether, and even the most modest version of what is being proposed would bring huge help to millions of Americans.  Add that to the start of an economic recovery and a repositioning of America in the eyes of the world and it looks like a pretty good year.

And how will things look by 2012?  President Obama has promised a complete withdrawal of combat troops from Iraq by the end of 2011.  I now predict he will do the same for Afghanistan by 2013.  Why?  In 18 months, there will either be discernible improvement in Afghanistan or not.  If there is, he has the same basis for phased withdrawal as now exists in Iraq.  If not, the American people will simply insist on a strategic exit.  And, if job growth begins to pick up next year or by spring of 2011, the Obama Administration will have set the table for a second term largely devoted to the domestic reforms that are pretty obviously at the top of the President’s personal to-do list.

That does not mean, of course, that jobs, education, financial services reform, climate change and the rest of the domestic agenda will be on hold until 2012.  There is much that might still be accomplished in the first term.  But the timing of withdrawal from Iraq and the beginning of a drawdown in Afghanistan helps to set a timeline for progress on the home front, as well. 

In saying this, I do not want to be misinterpreted as happy with the current pace of change.  Like many progressives, I am angered by how slowly, if at all, those who undermined the rule of law and our economic security over the last decades have been brought to any measure of accountability.  The scope of congressional ambition with regard to health care, climate change, financial regulation, and education strikes me as too narrow – and I wish the Administration were turning its back yet more dramatically on Bush-era abuses and preposterous claims of executive power.

But President Obama has given me hope.  One of his favorite words is “persistence,” and his West Point speech seems to me to be signaling the time frame within which a persistent President can help deliver “change we can believe in.” Even as progressives rightfully keep pushing, President Obama seems determined not to let America’s reflexive support for all things military to blur his focus on other national priorities.   That’s a very big deal.  President Eisenhower would be proud.

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The Nobel Message to the U.S.: “America, We Need You”

Posted by Peter M. Shane on October 9, 2009

It’s a safe bet that President Obama’s first words this morning were something akin to, “I won what??”  This is, after all, the man who conceded that Arizona State had a point in thinking an honorary degree might be premature.  President Obama – whom I admire deeply – has been in office under 10 months, and the menu of world conflicts seems pretty much as long as last January.  

In short, it also seems a safe bet that, in choosing President Obama for the Nobel Peace Prize, the Committee wanted to send a larger message.

 As I read it, that message is, “America, we need you.”

 The Birthers and Teabaggers will likely say that the Nobel Prize is testament to Obama’s overarching allegiance to European, rather than American values.  Nothing could be farther from the truth.

 President Obama has so captured the world’s imagination because he so strikingly embodies an America that the world yearns for – an energetic, diverse, inclusive America that is determined to lead the world, but with the world’s interests in mind.

 As the Nobel Committee said, President Obama’s “diplomacy is founded in the concept that those who are to lead the world must do so on the basis of values and attitudes that are shared by the majority of the world’s population.” 

 This statement takes as a given the fact that the President of the United States is “to lead the world.”  It just says how the world hopes he or she will do so.

 This international yearning for enlightened American leadership should come as no surprise.

 There will not be a meaningful international anti-nuclear proliferation regime without American leadership.

 There will not be a rapprochement between the West and Islam without American leadership.

 There will not be lasting peace in the Middle East without American leadership.

 There will not be measurable progress against global warming without American leadership,

 There will not be worldwide progress in the protection and expansion of human rights – and perhaps, most especially, women’s rights – without American leadership.

 These are things for which people around the world yearn.  They do not want America to shed its position of leadership; they want America to abandon unilateralism – the idea that America can lead with indifference to the “values and attitudes that are shared by the majority of the world’s population.” 

 As an American, I have to say I am grateful and slightly amazed that the eight Bush-Cheney years did not utterly kill the American brand abroad.  An agonizing “what if?” question will always be, “What if, on September 12, 2001, America had embraced a less unilateral vision of world leadership?”  How much closer would we be to the imperative international objectives we now seek?

 Because time only moves in one direction, however, Americans should be delighted by the award today bestowed upon our President.  The award is a bet not just on Obama’s future, but on ours.  It is a bet that we can be the America that the world sees in Barack Obama.

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