Beware Obama's Post-Election Surprises

From Obamacare to the Justice Department, our lame-duck president is still a problem.


"After my election I have more flexibility."'"President Obama to Russian President Dmitry Medvedev, March 26, 2012

Obama was talking then about the 2012 presidential election. But indications are that he has the same view of this year's midterm contests'"even if this time around, unlike in 2012, his party is defeated at the polls.

The "post-election surprises" issue generates passion because of the way it inverts the traditional civics class consent-of-the-governed democratic theory. Our textbook ideal of a president would do what he wants, then let voters pass judgment; or at the very least, say publicly what he wants, and hope voters ratify those goals in an election. Obama, by contrast, cloaks his agenda in some mystery. He also appears prepared to go ahead and do what he wants to do anyway, even if the voters in the congressional elections reject the agenda he has disclosed.

A former Republican congressman from Oklahoma, Ernest Istook, took to The Washington Times recently to warn that Obama is preparing post-election action to disclose new, higher Obamacare premium rates, provide work authorization for illegal immigrants, and let nonviolent convicts out of prison early. "The last remaining barrier protecting us from Obama-unchained is his need to protect fellow Democrats on Nov. 4th. That date is like a boxing bell, signaling Mr. Obama to unleash his barrage," Istook wrote.  

A professor of political science at the University of Chicago, Charles Lipson, recently circulated a list of at least six decisions that Obama has postponed making'"or at least announcing'"until after the election. "As soon as the voting is done," Professor Lipson predicts, "several big shoes will drop," among them Obama's choice of a new attorney general and his decision on the Keystone XL oil pipeline.

Nor do you have to be a former Republican Congressman or a right-leaning professor to buy the idea that Obama is postponing some major announcements until after the election. David Sanger of The New York Times reported on October 20: "No one knows if the Obama administration will manage in the next five weeks to strike what many in the White House consider the most important foreign policy deal of his presidency: an accord with Iran that would forestall its ability to make a nuclear weapon. But the White House has made one significant decision: If agreement is reached, President Obama will do everything in his power to avoid letting Congress vote on it."

In a 2001 paper, two foreign policy experts then at Brookings, Ivo Daalder and James Lindsay, took a look at arguments for constricting the actions of lame-duck presidents: "Lame-duck diplomacy is wrong because the sitting president should defer to his successor… Lame-duck diplomacy ties the hands of the incoming administration…. Lame-duck diplomacy is wrong because a lame duck's motives are not pure." Daalder and Lindsay considered each of those arguments in turn and wound up rejecting them all. "Neither the lame-duck status of the outgoing president nor the certainty that a new president will take office the following January is reason to curtail the fundamental constitutional right of sitting presidents to pursue foreign policy as they deem best," they wrote. Their argument applies to foreign policy, but the reasoning can be applied to domestic policy, as well.

Yet if the president's constitutional prerogatives remain his until the moment his successor takes the oath of office, so too do those of Congress. Those congressional powers enumerated in the Constitution include the powers "to declare war," to appropriate funds or to withhold them, "to establish a uniform rule of naturalization," and to consent to international treaties.

If Obama plans to exercise his executive authority vigorously, expect it to trigger an equally vigorous reaction from Congress. Particularly if Republicans wind up with control of the Senate, the House leadership will no longer be able to blame Harry Reid for the failure of legislative attempts to hem in the president. The Republican voters who elected Congress will want to see some results that curb Obama's plans.

Meanwhile, perhaps the most surprising thing about the prospect of post-election surprises from Obama is that anyone is still surprised by him. If there's any consolation for voters, it's that there's another big national election coming in two years. Before long it'll be another president's turn to spring post-election surprises.