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The Thing Speaks for Itself

by John Yoo

Obama’s rhetoric fails where his governing philosophy does

Republicans enthusiastically celebrated Mitt Romney’s victory over President Barack Obama in the first presidential debate. Commentators from across the political spectrum offered various reasons for Obama’s lackluster performance, ranging from the nature of the presidency (it surrounds its holder with yes-men; it affords little time for debate preparation) to the nature of Obama (he is too detached and abstracted; he has never faced tough opposition; he depends too much on the teleprompter).

While these theories may all have some truth to them, they focus too much on style over substance, on tactics over political philosophy. Strip away Obama’s posture, tone, and facial expressions, and the remarkable feature of his time on the podium is how little he actually says. Obama brings up no new domestic policies for his second term. He proposes no new legislation, nor will he cut any unnecessary programs. Spending and tax rates, it seems, will simply go on forever at their current rates. Somehow the deficit will magically disappear and the economy will fully recover.

The sound of Obama’s silence is not just a rhetorical tactic. It derives from his misunderstanding of the presidency, and of the role of government itself. Consider first Obama’s confusion about the constitutional role of the president. In his first two years in office, Obama conducted himself more as a party leader than as a chief executive, more as a prime minister than as a president. He led his Democratic majorities in the House and Senate into passing a stimulus bill that failed to stop unemployment from hitting double digits, as well as wasteful bailouts of banks and auto companies and national command-and-control plans for health care, the financial industry, and energy. Rather than use his veto power to restrain Congress, he deferred to his party’s barons on the substance of the legislation.

In this, he made a mistake similar to that of the first president elected from his party, Thomas Jefferson. When Jefferson won office 212 years ago, John Marshall predicted that the new president would “embody himself in the House of Representatives.” The chief justice meant that his political rival (and distant cousin) would govern by combining forces with his party’s majorities in Congress. This would “increase [Jefferson’s] personal power,” Marshall predicted, but it would also lead to the “weakening of the office of the President.”

Marshall’s observation explains much about Obama’s silence in the debate concerning his disastrous domestic policies. By associating himself so closely with Democratic majorities in Congress, Obama became responsible for their overreaching failures. Their reckless overspending and earmarks for liberal pet projects in the stimulus became his own. Their corrupt deals to buy Senate support for Obamacare (the “Cornhusker kickback” for Nebraska; “gator aid” for Florida; the “Louisiana purchase”) became his corrupt deals. Their command-and-control approach to global warming, in which the government will set limits on energy use and industrial production nationwide, became his.

Putting the president’s prestige and fortune in the hands of Congress upends the Constitution’s original design. The Framers saw Congress, not the presidency, as the main threat to the people’s liberties. In a democracy, James Madison wrote in Federalist 48 and 51, “the legislative authority, necessarily, predominates,” because it “has access to the pockets of the people.” He warned that “it is against the enterprising ambition” of Congress “that the people ought to indulge all their jealousy and exhaust all their precautions.”

The Framers intended the president to check this “impetuous vortex.” Alexander Hamilton wrote in Federalist 70 to 73 that a vigorous executive would protect against those “irregular and high-handed combinations which sometimes interrupt the ordinary course of justice” and provide security against “enterprises and assaults of ambition, of faction, and of anarchy” that would emanate from the “humours of the legislature.” The great threat to the Constitution, Hamilton wrote, was not the president but the legislature’s propensity “to intrude upon the rights, and to absorb the powers, of other departments,” such as the executive branch, the courts, and the states.

Obama’s constitutional failure was to “embody himself” in the Democratic majorities in Congress of 2009’10, instead of checking them. Perhaps Obama would like to exercise more independent leadership over domestic policy, but he has been a prisoner of his party. Recall that in the 2008 primaries, under Democratic-party rules, legislators and party leaders controlled 20 percent of the total delegate votes. Those “superdelegates” threw their support from Clinton to Obama at the crucial moment in that closest of races, and Obama’s sudden rise meant he had no political power base of his own. He could deny them nothing, and so he did deny them nothing.

Obama was captive not just to the primary rules, however, but also to the agenda of the modern Democratic party. Early in the 20th century, progressives became the first to argue that the Constitution had become obsolete in the modern world. Woodrow Wilson, the Democratic party’s greatest 20th-century thinker, argued that the separation of powers had rendered the national government too fragmented and slow to handle the challenges of the modern world (the Framers, of course, designed the two houses of Congress and the presidential-signature hurdle precisely to make it difficult for the federal government to act).

Only the discipline of the political parties, Wilson observed, allows the president and Congress to cooperate in overcoming the constitutional obstacles to legislation. Ever since, progressives have made it their mission to break down the barriers between the executive and legislative branches and to distort the president into a prime minister. A subordinate president would remove one significant check on Congress’s ability to pass legislation quickly and thus break the bonds on the federal government.

In Obama, the progressive assault on the Constitution may have come to its final fruition. But at the same time, it may have sown the seeds of its own destruction by dictating the bankruptcy of his debate performance. Playing accountant-in-chief, Obama devoted most of his remarks to claiming that Romney’s proposed combination of tax cuts and increases in military spending doesn’t add up: “It’s math, it’s arithmetic,” he declared. The candidate of the Democratic party was reduced to defending balanced budgets — never mind the consistent $1 trillion annual deficits under his watch — and accusing the GOP of profligacy.

All Obama can do is defend the status quo. He does not lay out any new policies, because he has none. Progressivism arose as a response to the unbridled capitalism of the industrial revolution. Progressives want to manage the economy not by trusting decentralized markets composed of millions of private decisions, but by delegating broad legislative authority to bureaucratic experts insulated from politics. Rights no longer take the form of limits on government power in favor of the individual — such as freedom of speech or religion — but rather of benefits (such as Social Security or welfare) handed out by the government. After progressivism’s advances in World War I, the New Deal, and the Great Society, universal health care was the biggest missing piece.

Progressivism provides Obama with no other policy model than Obamacare. With its nationalization of an economic sector, its removal of market mechanisms, and its rule by unaccountable bureaucrats, Obamacare imposes an obsolete, antiquated approach to government on 21st-century America. That model has manifestly failed, not just in the United States, but most clearly in Europe. Because of its deep unpopularity with the American people, Obama cannot campaign on extending the progressive model to any new areas of life. Indeed, the failure of progressivism is shown in Obama’s refusal to sell health care as a new type of right, as it was understood by FDR, Truman, and LBJ, but instead as a cost-saving measure.

Obama is left only with defending his health-care legislation against a Republican House, conservatives on the Supreme Court, and now a Republican who wants his job in order to repeal the law. But he can present no new significant solutions to our serious domestic problems, because progressivism gives him no new answers. Even should Obama raise his game in the remaining debates, most likely by launching personal attacks on Romney, he cannot resuscitate his dying ideas.

– Mr. Yoo is a law professor at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute. He served as a Justice Department official in the George W. Bush administration and is the co-author, most recently, of Taming Globalization.


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