Obama's Last Gasp at a Legacy

As his potency dwindles, the president should ease up on pot prohibition

All hope and audacity aside, the math of second-term presidential power is pitiless.

After winning re-election by 3.5 million votes in 2004, George W. Bush declared that "I earned capital in this campaign, political capital, and now I intend to spend it." Within months, the 43rd president's signature post-election initiative, creating private accounts for Social Security, was declared dead on arrival by the Republican-controlled House of Representatives. In the last Bush midterm election of 2006, energized Democrats re-took control of Congress. So much for second-term capital.

Bill Clinton was impeached halfway through his second term. Richard Nixon resigned in disgrace. Ronald Reagan's Republicans lost control of the Senate in 1986, and the Gipper spent the rest of his presidency backpedaling on a botched arms-for-hostages swap. 

The five second-term presidents prior to Reagan —Lyndon Johnson, Dwight Eisenhower, Harry Truman, Franklin Roosevelt, Woodrow Wilson—had it even worse during their midterms, averaging losses of 39 House and seven Senate seats. If President Barack Obama met the same fate in 2014, the Senate would turn Republican and the House would feature its largest GOP majority since 1929. 

Though that outcome may seem unlikely now, it is a statistical near-certainty that the pendulum of two-party politics swings decisively away from presidents in years five through eight of their tenure. Americans tire of the bully at the pulpit, same-party congressmen lose their fear of breaking ranks, and the media turns its attention to the next presidential contest.

So it should come as no surprise that, even after winning the popular vote by 5 million and talking up his "mandate," Obama has been so rudely introduced to his own impotence. The first big blow was the March 1 sequester spending trim, carried out over his howls of protests and predictions of catastrophe. As possibilities for compromise with Republicans floated away, so, too, did dim hopes of a "grand bargain" on long-term entitlement spending. 

Thus, the president who came into office in January 2009 vowing that the "hard decisions" on long-term entitlement promises would be "made under my watch, not someone else's," because "we are now at the end of the road and are not in a position to kick [the can] any further," will instead hand off a ticking entitlement bomb to his successor. Not a happy legacy, that.

Obama also spent the first few months of his second-term political capital on a series of gun control measures that became less popular the more he stumped for them. After even a comparatively mild and popular background check expansion failed in the Senate, the chief executive looked more petulant than presidential, calling it "a pretty shameful day for Washington," and claiming, falsely, that "there were no coherent arguments as to why we wouldn't do this." (For several coherent arguments on precisely that topic, consult in particular Senior Editor Jacob Sullum's work at reason.com.)

At a press conference not long after the gun defeat, Obama was asked by ABC News reporter Jonathan Karl, "Do you still have the juice to get the rest of your agenda through this Congress?" The president looked down, laughed awkwardly, and said, "If you put it that way, Jonathan, maybe I should just pack up and go home. Golly!" 

It doesn't have to be this painful. Second-term presidents have basically two options: Look creatively for domestic reforms that appeal to the opposition party, or use the executive branch's considerable discretion to make significant directional changes in U.S. policy. 

Since Obama lacks Bill Clinton's ideological slipperiness, at a time that Democrats have entrenched themselves considerably to the left of Clinton on economic issues and Republicans have hardened in opposition, the reaching-out strategy is probably a non-starter. The last real possible exception to that rule is comprehensive immigration reform, where electorally motivated Republicans were still negotiating with Senate Democrats at press time, while Obama stayed away from the fray. While progress on a reform bill has gone further than I expected, it still faces an uphill climb, and at any rate marks the last big bipartisan legislative package on the horizon.

That leaves executive action, a phrase that normally gives libertarians the willies. Second-term presidents can always bomb other countries (like Clinton in Kosovo), pardon commute the sentences of* their political allies (like Bush with Lewis "Scooter" Libby), and lard the Federal Register with a bunch of last-minute major regulations (like every recent president).

But there are decontrols and symbolic actions available as well, and here Obama can learn from his own recent positive experience. In May 2012, Vice President Joe Biden blurted out that he was "absolutely comfortable" with gay marriage. A few days after that generally well-received trial balloon, the president came out as well, saying "at a certain point I've just concluded that for me personally it is important for me to go ahead and affirm that I think same-sex couples should be able to get married."

Even though Obama had said "I favor legalizing same-sex marriages" way back in 1996, he did not get beaten up for re-arriving so late to the party. A Democratic base that has long been ahead of its political representatives on the issue simply applauded the overdue change, and noted how the presidential blessing moved public opinion even faster toward acceptance. By the time the 2012 election rolled around, Democrats could use this change of heart to bolster their case that Republicans stood only for the privileged sectors of society.

Cynics might note that it took Obama less than nine months to go from reluctantly embracing what his base clearly wanted to thundering in his second inaugural address that "Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law, for if we are truly created equal, then surely the love we commit to one another must be equal as well." But those of us who favor government non-discrimination in marriage recognition can take a more heartening and relevant lesson: Change that looks so frighteningly novel to timid politicians can actually be absorbed very quickly by voters, who then stand ready to reward the first movers.

The parallels here to marijuana prohibition are many. Medical marijuana is hugely popular nationwide, particularly among Democrats, and it's legal now in 19 states and the District of Columbia. Recreational marijuana is now legal in Washington and Colorado. Public opinion for pot legalization, like that for gay marriage, has inched recently above the 50 percent threshold, and is unlikely to go anywhere but up, given the very strong support it has among young voters. There is tremendous potential upside for a politician brave enough to go where America is clearly heading.

As the chief enforcer of federal laws, President Obama has an important discretionary role here. Given that the Drug Enforcement Administration simply does not have the manpower to block state-legal marijuana sales, the president could instruct the Department of Justice to focus its pot busts only on the 31 states fully participating in prohibition, preferably limited to cross-border operations in which a federal role has at least a theoretical justification.

The president also has the mostly neglected power to pardon convicts and commute sentences, which would be particularly apropos after he signed into law a reduction in the sentencing disparity between crack and powder cocaine. If current law suggests that today's inmates have already served too much jail time, why not belatedly give them their freedom?

Better still, Obama could, as in the gay marriage debate, return to the kind of bravery he showed before running for president. Back in 2004, he accurately described the war on drugs as "an utter failure," and asserted that "I think we need to…decriminalize our marijuana laws." Someone should tell him that he has the power now.

* CORRECTION: The original version of the article had this wrong.