If memory serves, didn’t President Clinton win the ‘92 election with
about 42% of the vote? The only place he had a majority was the
electoral college; by popular vote he had a plurality. In rough numbers
6 in 10 Americans (who voted) voted against him; compared with 5 in 10
Americans who voted against (and for) President Bush in ‘00.
Now, don’t get me wrong, I realize it is an important distinction
that no individual candidate in the ‘92 election got more popular votes
than Clinton. But that’s not really what Judge Calabresi is talking
about. He is talking about the nebulous concept of a “mandate” for the
president to act, which, if I understand him correctly, is some sort of
warrant the legitimate scope of which depends not on Article II of the
Constitution but on how decisively the public overall has indicated its
approval, measured by the election results. How robust is the “mandate”
of a president whom 6 in 10 people have voted against?
Of course, I remember a lot of grousing about Perrot skewing the
election results in ‘92, but I don’t recall anyone contending that,
either in theory or as a matter of practical reality, Clinton was
somehow less than the full-fledged president. Regardless of the 42%, he
won the election fair and square, in the electoral college, and was thus
not only entitled but obligated to exercise 100% of the power.
The executive’s job is to execute, a function that is largely
reactive since you can’t predict with certainty what’s going to happen
tomorrow, much less 2, 3 or 4 years out. When the World Trade Center
got bombed or when a budget had to be implemented based on then-current
economic circumstances, Clinton could not have been expected to exercise
some lesser percentage of his powers to reflect that, by a substantial
margin, more people had voted against him than for him. His “mandate”
– because he was lawfully in the job — was to do the best he could
with all the powers available to him and stand for re-election on that
record. That, I suppose, is what he did — and thereby won reelection .
. . once again with more people voting against him than for him (51% to
49% or so), and with no one arguing that this made him less of a president.
Can you imagine what elections would be like if voters were expected
to evaluate not what the candidate believes he should do but what he
believes the quantum of his “mandate” from the last election permits him
to do regardless of what his judgment dictates and his powers permit?