President Obama and the Framers' Presidency
Yoo, John C., Harvard Journal of Law & Public Policy
Legal scholarship on the presidency is moving toward more focus on constitutional design rather than political legitimacy or historical authenticity. But even if we were to design the presidency anew today, we might well keep the form of the original presidency. Many of the problems we have with executive power today likely have less to do with the intentions of the Framers in 1789 and more to do with political expectations for the person who holds the office today. Presidents have increasingly turned their attention and powers toward domestic affairs, where the Framers believed that Presidents would have the least influence, rather than focusing on national security, where the Framers understood the executive to have the greatest.
President Barack Obama's first years in office provide a vivid illustration of the tension between the twenty-first century Presidency and its original constitutional role. His disappointing first years in the Oval Office elicited a widespread rejection of Democratic policies and candidates in the 2010 elections. (1) The electorate was both filled with rage at the powers that be and opposed to specific Administration policies on health care, the economy, immigration, and terrorism. (2) But the explanation goes much deeper than polling. President Obama struggled because he has spent the first half of his term following an approach to the presidency that was inconsistent with its original design.
President Obama's primary focus in his first few years in office has been on domestic policy. He led a sweeping federal overhaul of the health care markets, which are responsible for about 18% of gross domestic product. (3) He and his party sought to bring the economy out of recession with a large domestic spending program and federal intervention in different markets, including taking on large ownership stakes in some of America's largest companies. (4) His administration has used its delegated authority to delay the construction of a Boeing plant in a right-to-work state, (5) to block the construction of the Keystone XL Pipeline bringing shale oil from Canada, (6) and to create a new type of legal immigrant status for potentially one million illegal aliens. (7)
President Obama's 2010 State of the Union message nicely summed up his topsy-turvy approach to the presidency. President Obama pressed for a new jobs bill, more domestic spending, and health care nationalization. (8) He attributed his political setbacks not to broad opposition to his domestic ambitions but to "a deficit of trust--deep and corrosive doubts about how Washington works that have been growing for years." (9) National security amounted to little more than an afterthought. President Obama devoted one paragraph each--out of the approximately 110 paragraphs in the speech--to Iraq, Afghanistan, and terrorism. (10) The historical equivalent would have been if President Lincoln had spent most of his first inaugural address discussing the transcontinental railroad and the Homestead Act, rather than the impending dissolution of the Union.
The electorate received President Obama's agenda with a political version of shock and awe. Public approval of President Obama's job performance dropped like a stone, from 67% in January 2009 (11) to 43% by the end of August 2010. (12) In the public's mind, President Obama sat lower than either of the Bushes or Bill Clinton after their first twelve months in office. (13) President Obama spent his first two years leading Democrats to pass a stimulus bill that did not stop unemployment from hitting double digits, presiding over bailouts of banks and auto companies, passing command-and-control plans for health care and energy use in the nation, and treating terrorism as a problem best handled by the civilian criminal justice system. His health care bill received no Republican votes for passage, (14) and his stimulus and global warming bills received little Republican support. …