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Saturday, December 17, 2016

What is Obama supposed to do?

Many on the left are angry with Obama for not doing more, or at least shouting more, about the dangers of the looming Donald Trump presidency. The prevailing view is that this is not the time for Obama's "everyone chill the fuck out--I got this" style.

But what, exactly, should he be doing? One of the limitations of the office is that the current office-holder must ensure the peaceful transfer of executive power--screaming about the threat Trump poses to the nation and the world (or at least some parts of it) is not an option for someone in that office.* Nothing Obama does now can stop a Trump presidency or limit the power that Trump will wield as President (a la North Carolina). Perhaps if he had a Democratic Senate, he could at least put Merrick Garland on the Supreme Court (of course, he had a Democratic Senate, Garland already would be on the Supreme Court).

[*] There are some holding out hope that Obama will do that when the current Senate unavoidably ends on January 3. Putting aside that it is never been Obama's style. Because such an appointment would expire in December 2017, it would require Garland to give up being a judge for one year on SCOTUS. At 64, I do not believe he would make that deal.

Obama's power runs out on January 20 and there is nothing he can do to change that fact. Perhaps he believes that reminding everyone (including Trump) that actual power tends to sober people up is his best move. And if he is wrong about that, there is nothing he can do about it on December 16. The interesting question is whether Obama takes on an active opposition role as an ex-President; that is generally not done, even across party lines, but perhaps this will be the extraordinary exception. As for what he is doing about Russian interference, I assume that is happening behind the scenes.

Many believe that the transition from election to inauguration of roughly ten weeks is too long. Usually the complaint is raised because it delays the new President coming in during times of crisis, leaving a lame duck who cannot (or should not be the one to try) to handle the crisis. These complaints prompted passage of the 20th Amendment, which took effect in early 1933 during one of the two most obvious illustrations of the problem. Similar concerns were raised in 2008-09, with the economy cratering in fall 2008. Perhaps we now are seeing the flipside of the problem of the long transition--when there is nothing we can do to stop what looks like it is going to be a problematic presidency, the long delay in starting that presidency only exacerbates the fear and speculation. Let's get on with seeing what is going to happen and what we actually can do to stop the worst of it.

Think of it as the political version of ripping the band-aid off.

Posted by Howard Wasserman on December 17, 2016 at 11:45 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


There's another point to consider. The President fancies himself a thoughtful man, and he faces a situation that (it seems likely) he had not considered remotely possible before barely a month ago. He might well be cautious about taking actions that are by definition precipitous and ill-considered that right now seem to help his side but the long-term valence of which cannot be known. Surely the example Harry Reid's foolish detonation of the nuclear option must be on the minds of everyone on that side of the aisle—when you change the rules of the game, it is not only your team that gets to take advantage of those new rules.

Posted by: Simon Dodd | Dec 17, 2016 12:32:59 PM

I assume some of the critics actually provide examples.

For instance, I have seen a few want him to go on a pardon/commutation frenzy (using that word to fit the tone of the moment). I reckon, again "many on the left" is a vague thing & don't know who we are speaking of here, there are a few other things that he might do that will help a bit at least. For instance, certain agency actions that might be somewhat hard to stop right away, even if they can be changed eventually.

Again, IDK, but reckon "the left" here give examples. They might be bad examples (and Garland would be one likely and there is some confusion there), but that might be helpful to address.

Posted by: Joe | Dec 17, 2016 1:51:45 PM

"Harry Reid's foolish detonation of the nuclear option"

One person doesn't have this power -- a majority of the Senate had to change that -- and it is unclear how useful retaining it for appointments would be. Democrats, e.g., filibustered a few appellate judicial nominations during the Bush Administration. Eventually, a group of senators decided to set forth a rule that only "extreme circumstances" warranted this. And, most of the controversial appellate judicial nominations were eventually confirmed anyhow.

Democrats took this and other issues other advisement to determine that having Republicans continual to filibuster Obama appointments was a bad situation. "Extreme" circumstances weren't involved in most if any of the cases involved.

This also means, of course, that now that a Republican President is in place that Democrats won't be able to filibuster his appointments. As a matter of basic democracy, I honestly this is fair. Also, there STILL remains procedural delays possible. Realistically, the nominees are likely to get thru unless they can find a few Republican senators who don't like them. And, if Democrats really tried to block basically each and every nominee, Republicans very well could have passed a similar rule.

Posted by: Joe | Dec 17, 2016 2:59:07 PM

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