Obama's Presidential Drama Calls for Muscle: Michael Waldman

Glum Democrats should note that President Barack Obama still has ample means to advance a progressive agenda. He can take bold executive actions even when Congress balks. The unpalatable tax deal with Republicans underscores that the White House should find ways to advance goals on its own.

Does this mean Obama should get in touch with his inner Dick Cheney? Not quite. But like all presidents, he has a bulging toolkit: executive orders, regulations, spending decisions, the bully pulpit and more. Obama has lots of power, and he should wield it. Liberals must learn to cheer.

Already, the Center for American Progress, a think tank headed by former Clinton White House Chief of Staff John Podesta, has issued an excellent first draft of an activist presidential agenda.

Consider energy policy, where congressional gridlock seems inevitable, with many conservatives insisting climate change is a myth and taxes are a nightmare. The Center’s experts say Obama could impose a $2-per-barrel fee on imported oil with proceeds steered toward energy research. Or he could direct that half the federal auto fleet use alternative fuels by 2015, thus creating a new huge market for clean vehicles. And he could use the new financial consumer protection agency to introduce strong protections for consumers.

Beyond those proposals, the Justice Department can press states to modernize voter registration systems and register millions of voters while curbing the potential for fraud. Some economists argue Obama could boost wages among employees of government contractors. And while a president can’t order independent agencies to act, a public request can give policies a big boost.

Presidential Power

There’s no little irony here. Lately it has been progressives who worried most about unaccountable presidential power, while conservatives celebrated robust chief executives. The parties sometimes seem to be swapping clothes. But there’s a difference between strong executive action to protect the environment or advance clean government, and actions carried out in secret that stretch the bounds of the law.

Of course, a strong presidency was first envisioned by those who wanted an activist government, which would come, predicted Alexander Hamilton, only from “energy in the executive.” Whether it was Thomas Jefferson buying Louisiana without consulting Congress, or Abraham Lincoln freeing the slaves by proclamation, the rise of a powerful presidency was synonymous with a growing federal presence.

Liberal Scars

But Cold War abuses, Vietnam and Watergate scarred liberals. In the 1940s and 1950s, historian Arthur M. Schlesinger Jr. wrote “The Age of Jackson” and “The Age of Roosevelt” trilogy to celebrate strong chiefs. By the 1970s, he warned of excessive executive authority in “The Imperial Presidency.”

Meanwhile, conservatives grew enamored of presidential might. Cheney waged a decades-long crusade to recover what he saw as neutered executive power. As vice president, he proudly pointed to his 1987 statement that the president has “monarchical notions of prerogative.” (George III would surely approve, even if George Washington might not.)

By the end of the Bush years, among many Republicans, it seemed that support for a strong presidency had become a euphemism for “I back waterboarding.”

Legitimate Tools

Yes, there’s plenty of hypocrisy to go around. But it doesn’t require torture -- or torturing the Constitution -- to see that presidents have developed many legitimate tools to advance their agenda that go beyond waiting for Congress to act.

That’s as it should be. We have had divided government for all but 13 of the past 40 years. And Senators have staged more filibusters in the past decade than in the rest of the country’s history put together. Congress seems institutionally frozen. Little wonder that presidents and their aides have found ways to push policy and prod the bureaucracy without waiting for congressional approval that will never come.

All this will require a new mindset in the White House. Obama has vetoed only two bills so far. He will need to learn to think presidentially, to seek ways to press forward without worrying about Congress. Executive actions convey strength when the president announces them with a flourish. No drama Obama, as his campaign staffers called him, needs a bit more drama.

With George W. Bush gone, rambunctious new conservatives may scream tyranny should Obama wield the presidential pen. Some worries are well placed. Recall that the first draft of the Bush administration’s Troubled Asset Relief Program bank rescue stipulated that the Treasury secretary’s decisions “may not be reviewed by any court of law or any administrative agency.” That shocking sense of unaccountability helped spur the Tea Party movement.

Crazed Adversaries

Self-confident claims of executive authority may well drive Obama’s adversaries into a frenzy -- perhaps yet another political plus for the president.

Of course, it is important that the executive branch stay within the spirit and letter of the law. There’s no excuse for secrecy. And there is a more potent argument for a strong check and balance on matters of war and peace than on routine regulatory actions.

White House aides seeking a road map can find it in an article written a decade ago by a young tenure-seeking law professor who had worked for President Clinton. “Faced for most of his time in office with a hostile Congress but eager to show progress on domestic issues, Clinton and his White house staff turned to the bureaucracy to achieve, to the extent it could, the full panoply of his domestic policy goals ... whether the subject was health care, welfare reform, tobacco, or guns.”

The professor was Elena Kagan -- and she got tenure. Her treatise reminds us that even when Congress swings to the other party, a gutsy and determined president can continue to make “change we can believe in.”

(Michael Waldman, former head speechwriter for President Bill Clinton, is executive director of the Brennan Center for Justice at New York University School of Law and the author of “My Fellow Americans.” The opinions expressed are his own.)

To contact the writer of this column: Michael.Waldman@NYU.edu

To contact the editor responsible for this column: James Greiff at jgreiff@bloomberg.net

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