The Presidency and Foreign Policy (plus a note on Polls and Wisconsin)

The 2012 presidential race was supposed to be about the economy.  At least that is what Mitt Romney wanted.  His goal was to emphasize this experience as a businessman in contrast to Obama’s failed leadership in an economy with still high unemployment.  If his first message was to steal a page from Bill Clinton’s 1992 campaign–“It’s the economy stupid”–his convention speech shifted it to the Reaganesque “Are you better off now than four years ago.”  Run on the economy, as the conventional wisdom would have suggested, and it should be a path to the White House since presidential re-elections are generally referenda on the economy.

Yet things have just not worked out for Romney.  First it was Obama picking up where Newt Gingrich left off, turning Romney’s Bain Capital experience into a liability and symbol of vulture capitalism.  Despite the persistence of a weak jobs economy, Romney has lost his advantage on this issue as the NY Times reports that polls now give Obama a slight nod on this issue.

The it was Paul Ryan.  Ryan diverts attention away from the economy and to budget cuts and Medicare.  Or Atkins in Missouri has pushed the agenda to abortion and social issues.  Or Obama  and the Democrats have made the campaign about gay rights.  Whatever the diversion, though, Romney has not been able to score on the issue that should have been his strength–the economy.

And now the agenda has shifted again–to foreign policy. Until now the presidential race was about domestic policy.  Yes Romney tried in his RNC speech to talk about Afghanistan and the war there, but generally the polls suggested that this is not what is driving the public or the race.  But how recent and potential events are placing foreign policy back perhaps to the center of the race, again taking the presidential contest further away from the economy.

Two events this past week were particularly important.  There is the killing of the US ambassador in Libya along with the anti-American uprisings across the Arab world, and then the demand by Israeli Prime Minister Netanyahu for the US to draw a red line for Iran regarding nuclear weapons.  Both of these events thrust foreign policy and events into the middle of the presidential race.

At first blush, Obama is coming our a winner.  He does so because of Romney’s ham-handed criticism of the president regarding Libya that was factually wrong and ill-timed, criticized even by fellow Republicans.  This is not Romney’s first mistake.  He crudely criticized the UK regarding the Olympics and also while visiting Israel his comments about Palestinians was criticized.    His views on Russia too seem antiquated.  The point here is that Romney’s lack of foreign policy experience is showing, and it creates an opportunity for Obama to look presidential and qualified.  Romney’s problem is not unusual for presidential challengers when running against incumbents–the latter always look more experienced and qualified–the big exception being Jimmy Carter and the hostage crisis in 1980.

Generally foreign policy crises work to a president’s political advantage.  It gives them the chance to look, while presidential and in control.  People rally around the flag, especially if presidents act decisively.  So far Romney has damaged himself and Obama has not hurt himself.  But that could change.

Think of worst case scenarios–all October surprises.  Israel bombs Iran.  What does the USA do?  Obama cannot ignore supporting our ally and with the Jewish vote critical to a Florida victory, he may have no choice but to intervene.  How such a war will affect the presidential election overall is unclear.  Conventional wisdom generally says the president should be helped with something like this, but America is war-weary.

A second October surprise-American hostages are taken at some other US embassy or another ambassador is killed.  Images of Carter, Iran, and 1980 are invoked here.  Carter’s impotence with the hostages–and a botched rescue mission–were not good for his image.  Obama probably now needs to take some major foreign policy action to address Libya but what?  In theory it and Egypt are our allies.  Kind of hard to bomb them.

Other October surprises are a continued erosion of stability and civil war in Syria and financial solvency of the Europe.  Overall, these foreign policy events are largely beyond control of Obama and all could dramatically change the presidential race.  They also have domestic implications–look at the price of gas.

Overall foreign policy and international events run risks for both Romney and Obama.  How these events play out are yet to be seen but they have placed foreign policy in the center of the race.  For Obama it also shifts the race again off the economy and that might be good.  For Romney, this may not be good.

Two Final Thoughts: Swing States and Labor Rights Wisconsin

Two other thoughts are in order.

Both the Financial Times and the New York Times have noted critical changes in the presidential race since the DNC.  Obama and the Democrats got a convention bounce that the GOP and Romney did not.  Obama picked up a couple of points in the polls but more importantly, he picked up some approval ratings.  This may be the “sugar high” that Romney speaks of, but it is still significant. 

But the bigger problem for Romney is that two swing states–Pennsylvania and Michigan–are no longer swing.  Romney has effectively given up on them, reducing the number of swing states to eight or nine.  The Financial Times reports nine swing states with Obama leading in eight, including a solid margin in Ohio.  Romney may be close in the national polls but he is not doing well in the critical swing states-although he has a shot in Wisconsin

Finally, on Friday a Dane County circuit judge invalidated the law that abrogated public employee rights in Wisconsin.  He did so on federal constitutional grounds (First Amendment freedom of association and Fourteenth Amendment equal protection grounds) along with state constitutional claims.  Were the decision upheld on appeal it would be a real repudiation of the Walker and perhaps more significant that had he ben recalled.

However hold on with this case.  It was not the best drafted opinion and the chances of it being upheld are iffy at best.  Moreover, Walker will move for the decision to be stayed on appeal.  It is not clear after reading it whether it restores collective bargaining rights and if so, when.  In short, lots of questions remain regarding what the decision really means.

Obama and Libya: The Authority to Act? (Plus a note on Pawlenty)

Muammar Gaddafi is an evil man who sponsored terrorism, suppressed, democracy, and has killed and tortured his people. I cheered when Libyans rose up against him. I supported the US and western embargo, the freezing of assets, and doing what we could to support the opposition. Gaddafi has to go.

But the same can be said of Kim Jong-Il in North Korea as well of Ahmadinejad in Iran, Mugabe in Zimbabwe, the leaders in China, and a host of other autocrats across the world. It would be terrific if they were swept aside by their people and democratic societies and governments replaced them. It wold also be wonderful if the US did all it could to encourage this–getting behind democracy and the people.

Yet the problem for the United States and Gaddafi is special–the U.S. has decided to use armed force to assist the opposition. This use of force raises three problems: 1) presidential authority to act; 2) what is distinct about Libya; and 3) what is the end game for the US?

Presidential Authority to Act

What constitutional authority does President Obama have to justify his deployment of American military force to enforce a no-fly zone in Libya? This is not clear.

The two sources of legal authority Obama can reference would be either the Commander-in-Chief clause of Article II of the Constitution, or the 1973 War Powers Act.

It is not clear how the Commander-in-Chief clause supports this action. The constitutional framers intended for Congress to be the dominant branch when it came to military and perhaps foreign affairs. Article I textually commits to Congress the power to declare war along with a host of other powers related to the military. Here Congress has not declared war and it is unlike after 9-11 when Congress did enact the Authorization to Use Military Force that gave Bush the authority (arguably) to deploy troops in Afghanistan. At least Bush had some legal authority to wage a war on terrorism, no matter how tenuous.

If Obama is relying on his Commander-in-Chief powers, it is hard to see how they come in. Libya has not attacked the US, it is not threatening vital interests, and it is not otherwise doing something that directly conflicts with American national security. Instead, to contend that the Commander-in-Chief clause gives Obama unilateral authority to deploy these troops is no different or better than Bush era assertions by John Yoo and others that the president had inherent constitutional authority to act. He does not.

There is no extra-constitutional authority for presidents to act. I discuss this issue in two articles. One is “ Democracy on Trial: Terrorism, Crime, and National Security Policy in a Post 9-11 World” that came out in Golden Gate Law Review and is located at http://works.bepress.com/david_schultz/15/ . The other is a piece entitled “Don’t Know Much About History: Constitutional Text, Practice, and Presidential Power,” http://works.bepress.com/david_schultz/11/ . This is a forthcoming piece is the University of St. Thomas Journal of Law and Public Policy.

Disputes over presidential power to deploy troops were supposedly addressed by the War Powers Act in 1973. It placed limits on presidential power to deploy troops for limited purposes, subject to consultation with and notification to Congress that the Act was being invoked. Here again Obama did not invoke the Act, although he does seem to reference it in terms of reporting to Congress. Had he actually invoked the Act, it might have provided clear support for his actions.

What Obama does seem to be invoking is Security Council Resolution 1973 that calls upon member states to enforce the no-fly zone. (Here is a link to his statement http://www.whitehouse.gov/the-press-office/2011/03/21/letter-president-regarding-commencement-operations-libya ) However, UN resolutions are not self-executing in the US. They cannot create presidential constitutional authority when none already existed. The president still needs to get constitutional authority. Acting as he did seemed similar to what Bush did when he sought UN support to invade Iraq in search of the non-existent WMD.

What should Obama have done? For what seemed like two weeks he dithered over what to do as the rebels advanced and then were beaten back. He should have been consulting with Congress, getting their support to act if the UN authorized action, or he could have clearly invoked the War Powers Resolution. But in any case, he did nothing and then perhaps acted as Bush would–relying on some vague inherent presidential powers.

Overall, it is possible Obama had legal justification to act, it is just not clear what it is.

What is distinct about Libya?

The second problem is what is distinct about Libya? Assume for now that Obama has the constitutional authority to act. Why Libya and why not Kim Jong-Il in North Korea, Ahmadinejad in Iran or Mugabe in Zimbabwe? Perhaps one can argue that resolution 1973 makes the difference. Specifically, world opinion and international law provide legal authority to act here and that is the difference. This may be a good legal argument, but what about the real politick argument for the US?

Libya is less of a threat to the US than Iran and Korea. From a strategic point of view it is hard to justify intervention. Korea and Zimbabwe are equally as brutal regimes. Why not them? Perhaps the difference here is that there is a popular movement to oust him and that is the reason why we are acting? Maybe the issue is about prospects of success in ousting him? All of these are possible answers yet I have yet to see a reason or argument that principally distinguishes Libya from acting in the other countries. Such a failure to clarify is what led Bush into Iraq and why the US is viewed as a hypocrite when it comes to us supporting or placating some repressive regimes, including in the Arab world. Why for example, did we not act in Bahrain?

What is the End game?

The final troubling issue is the end game for Obama? What are our goals and what are we trying to accomplish? If it is simply to enforce the no-fly zone that already seems to have been secured. Do we now walk away or does that now require a constant presence? Is it to prevent Gaddafi from killing and abusing his people? If so then what more does it require? It is to take Gaddafi out? Military action in the last two days seem to suggest the later two options are possible goals?

It is just not clear what the end game is and what we hope to achieve. Given comments by SOS Clinton and Obama in the last week or so, ousting Gaddafi seems the real objective but there is nothing in Resolution 1973, in the power of the presidency, or in any statement by Obama that provides a clear definition of what our objectives are. For those of us growing up during Vietnam one of the major lessons was that there must be clear objectives surrounding US military action, and that seems absent here.

I would like Gaddafi out. I thought Obama waited too late to act. He needed to line up congressional support sooner when the Libyan opposition was stronger. He needed to show how the US could stand up for Arab people and not their dictators. He had a chance to take decisive action but he dithered. He waited so late that is probably costing more lives. That is the real tragedy of human suffering. But the other tragedy is constitutional and political–he has failed to show by what legal authority he is acting, why Libya, and what his end game is. All of this raises difficult questions for Obama and the United States.

A Note on Pawlenty


No surprise that Pawlenty is forming a presidential exploratory committee. We have known all along he wants to run for president. He needs to run because he has no other prospects for what to do.
But creating the committee still does not solve two fundamental problems Pawlenty has. First he has no narrative or voice that distinguishes him from all the other GOP candidates who may decide to run for president. He has failed so far to make the case for himself.

Second, Pawlenty seems to be running against everything. He is running against Obama, against taxes, and against federal health care. He tells us all the things he is against and will not do but he has failed to state what he will do as president. It is as if he is running against and not for the presidency. If he hates the government so much why does he want to be president? I am perplexed.

There is a reason he is so far down in the polls. He has no identity to call his own. After neatly two years unofficially running he is behind Michele Bachmann who has been an undeclared presidential candidate for about three months. He needs to catch fire quickly and hope for a good Iowa bounce. So far there is no indication that it will happen.