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Obama’s reelection will usher in the passive-aggressive presidency


Nov. 4, 2012: President Barack Obama speaks during a campaign event at McArthur High School in Hollywood, Fla. (AP)

Whether the playing field has switched to dueling podiums, fake town halls, or the conference table, President Obama has taken significantly more time than Gov. Mitt Romney to speak his mind.  But because of a stubborn record of economic failure, the incumbent has run out the clock attacking his challenger rather than discussing policy.

Mr. Obama’s silence on substance promises four years of listless government, interrupted only by sporadic lurches of activism.  Instead of an “energetic executive,” the hope of the Constitution’s framers, Obama’s reelection will usher in the passive-aggressive presidency.

A presidential election provides more than just a chance to collect more votes than a rival.  It presents the opportunity to seek a nationwide mandate.  Because the Constitution gives him precious few domestic powers, the president needs the support of an electoral win to wield any political leverage during his term.  Mr. Obama’s tactics of attack deprive him of any claim to a popular mandate.


An Obama second term will owe its hollowness to more than just odd grimaces, nasty glances, or attacks on Mr. Romney’s investment portfolio. The debates revealed the intellectual exhaustion of the president and his ideology.  

Progressivism suffers from two problems. First, it has no logical stopping point. If the state will provide every citizen with health care, why not every other supposed necessity of life?

Progressivism contains no self-limiting principles to stop the government at providing health care, food, shelter, heat, and clothes for all – jobs and college education could just as easily be next.

Mr. Obama’s hasty release this week of  “A Plan for Jobs and Middle-Class Security” only highlights progressivism’s poverty. His solution to a somnolescent  economy, persistently high unemployment, and dropping incomes is to hire 100,000 more teachers. Why not put 100,000 police, firemen, or nurses on the federal payroll too?  Progressivism has no rational limit once it swings open the treasury doors.  

Meanwhile, Mr. Obama offers no proposal to fix the looming economic disaster that actually lies within Washington’s control. Entitlement programs, such as Social Security, Medicaid, and Medicare, will go bankrupt as the Baby Boom generation continues to retire. Mr. Obama promises merely to “protect retirement security” by opposing “efforts to gamble Social Security in the stock market” and “a voucher system” for Medicare.  Again, Mr. Obama proposes no new ideas to fix benefits programs based on obsolete mid-20th century economic and social theories.  He blithely ignores the innovations in the states and other western nations that have solved these problems.  It was as if Google decided to design the next killer app by staying true to Henry Ford’s assembly line.

Progressivism’s second great fault is its war against the constitutional structure. Original progressives, such as Bull-Moose Teddy Roosevelt and Woodrow Wilson, explicitly attacked the Constitution for retarding enlightened reform. They wanted to lift constitutional limits on federal authority and to transfer legislative powers to independent agencies. 

Progressivism crested with ObamaCare. Congressional Democrats nationalized one-sixth of the economy and gave unaccountable bureaucracies the power to override the private markets in medical goods and services.  But the American people rejected this path in the 2010 elections, and ObamaCare remains so unpopular that progressivism has nowhere else to go.  Its author dares not risk any serious proposals for a second term.

Mr. Obama’s political modus operandi will only compound progressivism’s empty core. His debate silence revealed another fact: his refusal to cooperate with the opposition party.  He would not compromise to win Republican support for his stimulus package or ObamaCare

Brushed aside Republican proposals, Mr. Obama famously declared: “I won the election.” Unlike the Clinton administration, Mr. Obama did not offer to negotiate with a new Republican House for the public good.  

In 1996, Mr. Clinton signed Republican bills on welfare reform and crime.  In 2012, Mr. Obama played chicken with the debt ceiling, refused to submit a budget to Congress, and demanded an automatic sequestration bill that will hike taxes and cut spending indiscriminately – throwing the economy into a tailspin next year.

Republicans should keep the House and may win the Senate. Mr. Obama’s partisanship guarantees that legislative paralysis will reign. 

But conservatives would be making a serious mistake to hope for a rerun of the 1990s, when divided government allowed the economy to grow unhindered.  Middle East turmoil, the Afghan war, Iran’s nuclear quest, and China’s rise underscore the constitutional importance of the Presidency. As Alexander Hamilton wrote in "Federalist 70," “Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks.”

Republicans in Congress alone cannot lead from the front instead from behind, pursue a more vigorous diplomacy, or field a more decisive military.  

Mr. Obama will also control the executive’s regulatory powers, granted by ObamaCare and the broad congressional delegations of the New Deal and the Great Society. He will still be able to pursue a smaller progressive agenda, though only in a spastic and opportunistic manner. Anyone who thinks that the administration will use its regulatory powers to grow the economy has slept through the last four years. It has unilaterally stopped the Keystone pipeline, delayed South Carolina’s Boeing factory South Carolina, limited oil and gas exploration in Alaska and the coastal seas, strangled coal-burning electricity plants, and practiced crony capitalism of a green shade.  He has even misused the president’s power of prosecution to create a jury-rigged amnesty for 800,000 illegal aliens.  

Conservatives might hope that the courts will rescue them from this constitutional debacle. But should Obama win a second term, the advanced ages of the Justices (three Justices will be at least 80 years old during the next four years) suggest that he will enjoy two or three Supreme Court appointments, in addition to the many appointments to the lower courts, which finally decide 99 percent of all federal cases.  

A Republican Senate can delay, but not block Mr. Obama from undoing decades of Republican efforts to contain an activist judiciary.  Chief Justice John Roberts’ blessing of ObamaCare should warn conservatives about relying on judges to block federal power.

Left to its own devices, Washington will inexorably expand its interference in the economy and civil society.  Though deprived of a mandate, Mr. Obama can still use the constitutional powers of his office to risk the nation’s security and drown the economy in yet more progressive regulation. 

Only a conservative president, with a like-minded Congress, can begin the long road back to a government of limited powers and a people who rely on themselves, not Washington, to chart their futures.

John Yoo, is a law professor at the University of California at Berkeley. He served as an official in the Bush Justice Department from 2001-03 and is author most recently of "Taming Globalization: International Law, the U.S. Constitution, and the New World Order" (Oxford 2013).