The Opinion Pages | OP-ED CONTRIBUTORS
Obama, the Least Lame President?
By IAN AYRES and JOHN FABIAN WITTDEC. 21, 2014
NEW HAVEN — HISTORIANS rate presidents by every conceivable quality.One survey of presidential scholars rates presidents along no fewer than 20 dimensions, from best luck (Washington) and best imagination (Theodore Roosevelt) to best intelligence (Jefferson) and best handling of Congress (Lyndon B. Johnson). And of course, there's the ultimate prize: Best president, a distinction Lincoln and Franklin D. Roosevelt have traded back and forth since at least the first modern survey, in 1948.
What about least lame duck? President Obama is making a run for the title. Since the midterm elections, in his first month and a half as a lame duck, Mr. Obama has taken dramatic action on immigration, climate change and now, normalizing relations with Cuba.
The idea of a lame duck goes back to the mid-18th century. Jobbers on the London Stock Exchange used the term to describe brokers who were near default. Such men, it was said, waddled off with their credit destroyed.
Americans adapted the term to politics. For more than 140 years after the creation of the American republic, senators and congressmen who lost re-election bids had a long five months left to serve out their terms. (Many gathered in a White House hallway known to Washington wags as Lame Duck Alley, desperately seeking patronage jobs from the president.)
The second session of each Congress even came to be known as the "lame-duck session" — until 1933, when the 20th Amendment moved the end of congressional terms to January from March and created a 17-day lame-duck window between the beginning of the new Congress's term and the end of the incumbent president's term.
But it was the 22nd Amendment, ratified in 1951, that truly invented the modern lame-duck presidency, by prohibiting presidents from running for a third term.
Mr. Obama is the fifth president since then to confront the problem of trying to remain effective during a final two-year congressional session. (The others were Dwight D. Eisenhower, Ronald Reagan, Bill Clinton and George W. Bush.)
Every one of these five faced, during his last two years, a House and a Senate controlled by the opposition party. Legislative accomplishments in these periods were few and far between. Reagan got mired in the muck of the Iran-contra affair. Mr. Clinton's main accomplishment was avoiding conviction in the Senate after his impeachment in the House.
But something strange has happened in our last two presidencies. The lame-duck phenomenon has changed. In our new political marketplace, the decline of powerful party organizations and the rise of hyperpartisan politics mean that presidents have much less political capital even at the height of their terms. At the same time, they have unprecedented capacity for unilateral executive authority. The great constraints on using that authority are re-election and the midterm congressional elections. But once those are over, the new end-of-term president is not a lame duck anymore. He is a new and more muscular animal altogether.
Mr. Bush's final two years in office were his best. In 2008 he displayed the fortitude to resist the laissez-faire do-nothings and helped keep us out of a second Great Depression through a bailout of the American International Group.
Mr. Obama has been even more audacious in leveraging his executive power. He is acting for the first time as if he's comfortable being president.
What else might an unfettered Mr. Obama do? First, he might realize that there is yet another election. Reagan is the only lame duck to have handed over the presidency to his own party. The lame duck who wants to be loyal to his party needs to avoid taking unpopular actions during his successor's campaign. This means that Mr. Obama should concentrate his unilateral actions now, before the 2016 campaign begins in earnest.
Second, he should think about doing and saying those needful things that only a president who is not again seeking office can say and do. He might find a way to, finally, close the Guantánamo Bay prison complex. Or just before the 2017 inauguration, he could commute the sentences of the 50,000 nonviolent drug offenders who have been sentenced to more than 10 years in federal prison. That would be memorable.
Could a Republican successor reverse these actions? Not easily. Executive action often creates new contractual obligations (as Mr. Bush's bailouts did) and new rights (as Mr. Obama's immigration action has) that are hard to roll back. Finally, he should heed the example of Eisenhower, whose 1961farewell address warned of the military-industrial complex, and not forget the importance of last words. So far, his most memorable line is the slogan that helped him in 2008. Can Mr. Obama became our best lame duck? To paraphrase him: Yes, he can.
Ian Ayres and John Fabian Witt are professors at Yale Law School.
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