Legal Commentary

Obama?s Beef

By Jack M. Balkin

Whether Senator Obama has a well worked out domestic policy agenda and a detailed understanding of foreign policy is a lingering concern of democrats who find his inspirational rhetoric short on specific analyses, proposals, and plans. This concern has provided occasion for Senator Clinton and others to revive Walter Mondale?s famous question to Gary Hart, taken from a then popular TV commercial for a hamburger, ?where?s the beef?? Obama may be tempted respond to the question by offering detailed counter-proposals to Senator Clinton?s plans for health care, immigration, the economy, campaign finance and any other issue she chooses to highlight. This would be a mistake both as tactical choice in the primaries, and in light of his impressive understanding of the place of the presidency in the constitutional order.

Instead, Senator Obama should emphasize the finer cut of beef that is already implicit in his own vision for a new kind of politics and a new kind of presidential leadership.

Just beneath the surface of Obama?s call for a new kind of leadership that transcends previous partisan divisions and old habits of political contestation is a new constitutional theory ? or, perhaps more accurately, a better understanding of our Constitution whose meaning has been lost over time and whose principal political institutions have begun to decay. In Obama?s vision, presidential success is not measured by how many detailed policy proposals he can ram through Congress. Rather, his vision sets a new standard, that presidential success will be measured by an improved functioning of the government as a whole. In this vision, the details of policy are not as important as the principles that guide policy. In this vision, it is less important to secure ones preferred version of a bill than it is to mobilize Congress to solve the problem for which the legislation was designed.

In contrast, all recent presidents, and especially Senator Clinton, understand the President as the chief legislator, as the person and the place where legislation is made. She seems incensed that anyone not as technically skilled as she in legislative craftsmanship would think they are as qualified for election to the presidency. Obama understands that although the president needs to be very knowledgeable about public policy, to demonstrate that knowledge, and even, as president, to offer legislative proposals to the Congress ? he has an instinctive sense that his job is to lead, not to legislate.

Obama knows instinctively that Senator Clinton did not learn the major lesson from the failure of her health care plan at the beginning of her husband?s term. For Obama, the lesson is that one does not take over the role of Congress, in secret meetings of unelected friends and colleagues and then insist that the presidential product be given a mere seal of approval by the Congress of the United States. He knows that presidential leadership is much more than a matter of bargaining from a strong position but includes, as well, facilitating the work of others. Obama knows that his job will be to initiate and nurture a legislative process. He will offer a plan, to be sure. He will use his plan to illustrate the principles he wishes to guide legislative craftsmanship: that all Americans have access to health insurance and that it be affordable. He will make speeches and he will call, meet, and cajole members of Congress. But he will not substitute ?administration? for ?deliberation.? If as Congress deliberates it becomes clear that Senator Clinton?s plan accomplishes his principled objectives better than his own plan, he will embrace it, praise it, and praise her. Obama seems to understand that this sort of scenario would represent success not only because the nation?s health care system would be improved, but also because it would signify that the government, not just the presidency but the government as a whole, was not broken anymore. He would show the world that some meaningful vision of democracy was still workable.

Senator Clinton seems to have drawn a very different lesson from her previous failure. She thinks she failed because her defeated plan was not enough (as policy and as political savvy), and she has deployed her considerable ?policy wonk? talents in designing a new one and criticizing the alternatives. Having done all that work over the last twelve years, she is in position to take better advantage of the presidential ?honeymoon? period to ram her improved plan through Congress. She doesn?t seem to understand that her ?success? would come at the expense of the polity as a whole, deepening the pathology of an administrative ?republic? that no longer appreciates the beauty and benefit of legislative deliberation. It is ironic that Senator Clinton?s extraordinary talent as a legislator could further undermine the status of Congress in our republic as she imports that view of the world into the White House and misunderstands the true meaning of presidential leadership in the American constitutional order.

Senator Obama has the beef, Senator Clinton the hamburger.

Full post as published by Balkinization on January 30, 2008 (boomark / email).