Steven G. Calabresi is the Clayton J. and Henry R. Barber professor of law at Northwestern University and the co-author (with Christopher S. Yoo) of “The Unitary Executive: Presidential Power from Washington to Bush.” He served in the Reagan and George H.W. Bush administrations and is co-founder and chairman of the board of the Federalist Society.
President Obama is now officially a lame duck: no more elections left, and facing GOP majorities in the Senate, House, governors’ mansions — and even the Supreme Court, in a sense, where five of the nine justices were appointed by Republicans. But that doesn’t mean he is powerless. In fact, looking back on two-term presidents reveals that much of what we believe about lame-duck commanders in chief may not hold up.
1. Lame-duck presidents cannot get anything done.
Wartime presidents as diverse as Franklin D. Roosevelt, Ronald Reagan and George W. Bush put the lie to this myth.
FDR recovered from a very difficult second term by winning a third and a fourth term and effectively presiding over the United States’ victory in World War II, which was complete five months after he died. At the time, his wartime leadership was more critical to his legacy than his New Deal policies, which were repudiated by the 1938 midterm election, where the Democrats lost badly. Reagan survived missteps such as the Iran-contra scandal and conducted crucial negotiations with Soviet leader Mikhail Gorbachev in his second term, and also handed the baton to Vice President George H.W. Bush in 1988 — a continuity in leadership that helped win the Cold War. And after the “thumpin’,” as George W. Bush put it, that the GOP suffered in the 2006 midterms, the president fired Defense Secretary Donald H. Rumsfeld and pulled off a troop surge in Iraq. Although Bush’s approval ratings did not recover during his time in office, his presidency’s overall reputation has improved significantly with time.
2. Lame-duck presidents can only affect foreign policy.
Second-term presidents may seem particularly constrained domestically when facing opposing majorities in Congress. But remember that Reagan and Rep. Dan Rostenkowski (D-Ill.), then chairman of the House Ways and Means Committee, came together to enact major tax reform — cutting the top individual marginal tax rate to 28 percent — in 1986, during Reagan’s second term. Today, a bipartisan tax reform bill that would eliminate deductions and lower marginal rates could be within Obama’s reach, if he goes for it. The effort could stimulate the economy and boost Obama’s approval ratings by showing that he can work with congressional Republicans.
Another very lame-duck president with low approval ratings also got his political opponents in Congress to pass major domestic legislation: George W. Bush pushed a huge and controversial bank bailout bill through a Democratic Congress in his last year in office. Obama could similarly get a major free-trade pact with Pacific nations through the new Republican Congress, which would stimulate the economy and shore up our Asian allies.
3. Lame-duck presidents have a hard time propelling their party’s candidate into the White House.
Analysts such as Megan McArdle of the Atlantic have made arguments along these lines. But a look at the historical record tells a different story.
Reagan helped George H.W. Bush win California — and the White House — in 1988. After Harry S. Truman ascended to the top job after FDR’s death, he earned his first complete term as president with a dramatic election in 1948, the fifth consecutive presidential election won by the Democratic Party. Calvin Coolidge, who became president after Warren G. Harding’s death — and then, after winning a new term on his own, refused to run for a second — helped Herbert Hoover succeed him. President Theodore Roosevelt appointed William Howard Taft his secretary of war, helping Taft win the presidency in 1908. President Ulysses S. Grant was succeeded (in a disputed election resolved by an electoral commission) by Rutherford B. Hayes in 1876. President Andrew Jackson was followed by Vice President Martin Van Buren after the 1836 election. And, of course, early on there was the 24-year stretch of three consecutive two-term Democratic presidents: Thomas Jefferson, James Madison and James Monroe.
Even in cases in which the incumbent party lost after winning two consecutive presidential elections, the defeats were often excruciatingly close. Richard M. Nixon lost only narrowly to John F. Kennedy in 1960; Gerald R. Ford lost a tight vote to Jimmy Carter even with Watergate and the Nixon pardon weighing him down; and Al Gore won the popular vote but lost the electoral college to George W. Bush after Bill Clinton’s two terms.
4. Lame-duck presidents must resort to second-rate personnel in their second terms.
Obama is now in the hunt for a new defense secretary and Secret Service director. Fortunately for him, it is not set in stone that lame-duck presidents must settle for mediocrities.
The resignation of the unimpressive Alberto Gonzales as attorney general allowed George W. Bush to appoint Michael Mukasey, who despite his narrow confirmation margin became the best attorney general Bush had. Reagan’s second-term attorney general, Edwin Meese III, had a deeper impact on constitutional law and on judicial appointments than the first term’s William French Smith. And Henry Kissinger proved a better secretary of state to Nixon and Ford than either William Rogers (Kissinger’s predecessor) or Cyrus Vance (his successor); it was Kissinger who got Nixon to go to China, undercutting Chinese-Soviet ties.
5. Lame-duck presidents tend to become more unpopular as their term draws to an end.
This fate is not foreordained. Reagan left the White House on a high note in 1989, having survived the Iran-contra scandal and having laid the foundation for the United States’ Cold War victory. And Clinton was so popular after a failed GOP attempt to impeach him that he probably would have won the 2000 presidential election if he’d been eligible to run again.
Indeed, many lame-duck presidents facing congressional majorities of the opposite party still have achieved successes that boosted their political fortunes and long-term reputations. But they’ve usually done so by tacking more to the center than playing to their base. Obama would be well advised to pursue such a strategy today.