Machiavelli and the Art of US Presidential Politics

 

The first rule of politics is to get and hold power. At least this is the argument of Niccolo Machiavelli in his classic book, The Prince.  If one wants to impact public policy, winning an election is not just an important thing. It is the only thing. Democrats need to remember that this year as they think about the presidential election and the prospects of running with Joe Biden.

Machiavelli's Prince  is often mischaracterized is making the argument that the ends justify the means.  By that, that any means necessary, whether it's legitimate or not, is permitted so long, it leads to one holding and maintaining power. The reality is even for Machiavelli, there are limits to power. At the end of the day, even he recognized both in the Prince and in his Discourses that the people are important. Winning them over and holding their support is critical to holding on to power.

 But in thinking about how one secures power Machiavelli distinguishes between virtu and fortuna.  Virtu is the characteristics and efficacy that the price possesses. In the case of modern America, a candidate for office brings charisma, their speaking ability, and  their stance on issues. It is their strategy and their ability to persuade or to influence.  Virtu is what is under one’s own control.

  In many ways, Richard Neustadt’s  classic book Presidential Power talks in part about the concept although he never calls it virtu.  Real power is the power to persuade and convince others to vote for you or adopt your policies.  Part of the power to persuade  are those traits that are within the scope and control of the candidate.

Conversely, Machiavelli also refers to fortuna, roughly translated as fate or luck, or perhaps contingency. These are factors beyond the control of the prince. Together, Machiavelli sees an interplay of virtu and fortuna.  The political he opportunities that one has are in part circumscribed or defined by fortuna. Similarly, in assessing the scope of presidential power, as the power to persuade Richard Neustadt sees both factors under a president's control as well as beyond as determining the actual power and influence.

When thinking about Joe Biden,  Machiavelli's concept of virtue and fortuna play out well. It 2020 Joe Biden got elected in part because of who he was a calming elderly candidate, whom people could trust. He significantly got elected because of the circumstances beyond his control. Donald Trump was his own worst enemy. He was a victim of fortuna but also his virtu was his own failing. Trump’s  mishandling of the pandemic just about sealed the election for Joe Biden.

Going into 2024 Joe Biden is behind Donald Trump in the popular vote, but more importantly trails Trump in the critical five or six swing states that will decide the election. Democrats had been hoping that fortuna would work in their favor again. The hope was that the economy would work to Biden's advantage and help him or that abortion politics, much like it worked in 2020 and in the midterm elections of 2022.  There was also hope that Trump's convictions or legal problems would help Biden and perhaps a belief that the Supreme Court decision in the disqualification  case would work to the advantage of Democrats. All of these are variables beyond Biden's control. They are fortuna.

The more one relies upon fortuna the less certain ones fate is.  This is exactly where Biden was prior to the presidential debate. There was a hope that his debate performance would change the direction of the presidential race. But it failed. Now in the days after that failed debate, Democrats and Biden appear to still be reliant upon fortuna hoping that somehow Trump will implode. Or that the voters will come back to their senses because of the fear of a Trump second presidency.

To believe all that is to leave too much to fate or to fortuna. Thinking that doing nothing, staying the course, not replacing Biden with somebody else will somehow lead to some scenario that will lead to his reelection is quite fanciful. In goes against what Machiavelli taught us about the first rule of politics.

It's not just Trump: The Case for a Weaker American Presidency

                    The American presidency is too powerful.  That is what the Senate impeachment trial and the 2020 presidential election should be about.  Instead, masking this deeper constitutional problem is Donald Trump and his personal abuses of power.

            Yet these abuses of power are not simply the product of one errant person, but part of a longer and deeper pattern of congressional delegation and acquiescence of power to the president that needs to be reversed, especially by the next president of the United States.

            The American Revolution was a product a fear of abuse of executive or royal power. Americans are familiar with the first lines of the opening paragraphs of the Declaration of Independence which begin with “When in the course of human events” and “We hold these truths to be self-evident.”  But the second half of the Declaration is a bill of particulars against the excesses and abuses of power British King George III inflicted upon the colonies.  They included his refusal to “Assent to Laws,” and “obstructed the Administration of Justice.” Our independence and revolt against the king were a continuation of a centuries long battle between parliamentary supremacy and monarchical authority that begin in 1215 with the Magna Charta. 

            So great was the fear of executive authority that in America’s first constitution, the Articles of Confederation, presidential power was vastly limited by a Congress that chose him.  In adopting our present constitution in 1787, while some such as Alexander Hamilton urged for a very powerful presidency, most of the framers sought to limit this office through narrowly defined powers, impeachment, and the concepts of checks and balances and separation of powers. Constitutional framer Charles Pinkey feared giving the president too much military power would “render the Executive a monarchy.” Edmund Randolph feared similar monarchical tendencies in the president if the executive branch were treated as unitary under one person.  James Madison said it had to be clear that the president did not have either legislative or judicial powers.

            As originally designed, the presidency was not, as some wrongly contend today, to be a co-equal branch with Congress and the judiciary.  Constitutional Convention delegate Roger Sherman said that the president ought to be “nothing more than an institution for carrying the will of the Legislature into effect.”  James Madison declared in Federalist Paper 51: “In republican government, the legislative authority necessarily predominates.” The consensus of the Framers and by constitutional design, was that the presidency was envisioned to be a far weaker institution compared to Congress than it has become.  Yet even with the checks imposed on it, some, such as Patrick Henry, feared the new presidency which was given “Extreme Powers; the powers of a king.”

            Multiple factors changed the balance of power between Congress and the presidency. One, emergencies, such as wars, pushed the presidency in a more powerful direction, such as with Abraham Lincoln, Woodrow Wilson, Franklin Roosevelt, and Lyndon Johnson.  Two, the constitutional framers never envisioned the rise of a large administrative bureaucracy under the control of a president which would augment executive authority.  Three, Congress over time delegated or acquiesced significant rule making authority and discretion to the president and the executive branch to make rules or issue executive orders that carried the force of law.   All this produced by 1973 as Arthur Schlesinger, Jr. aptly described, an imperial presidency that needed to be constrained.

            As an immediate result of Richard Nixon’s abuses of power Congress enacted, often over presidential vetoes, several pieces of legislation.  The 1973 War Powers Act aimed to limit presidential authority to deploy military force without congressional ascent.  The 1974 Budget and Impoundment Act sought to limit the ability of the president to withhold and divert congressionally authorized funds.  The 1976 National Emergencies Act repealed all existing presidential declarations of emergencies and purportedly circumscribed future orders.  The 1978 Ethics in Government Act required disclosure of financial interests of many executive branch employees.  It also included a provision for the creation of a special prosecutor to investigate the executive branch, addressing concerns stemming from Richard Nixon firing his self-appointed prosecutor Archibald Cox in the famous 1973 Saturday Night Massacre. Other laws, several hundred by estimate, while delegating power to the executive branch, sought to constrain his discretion by giving Congress a one or two-house veto of decisions made.

            At the time these laws looked like limits on presidential authority, but they failed for many reasons.  One, as with the Ethics in Government Act, they exempted the president from many requirements.  Two, Supreme Court decisions favored executive branch power.  In Immigration and Naturalization Service v. Chadha, 462 U.S.919 (1983) the Supreme Court declared the legislative veto unconstitutional.  In N.R.D.C. v. Chevron, 467 U.S. 837 (1984), the Court said that disputes over the meaning of congressional statutes would be resolved in favor of executive branch interpretations. Three, Congress, in the case of the special prosecutor, let the law expire.

            Four, all of these laws still assumed the president would voluntarily comply with invoking the law, such as with the War Powers Resolution, or continued to grant him broad discretion to act.  For example, the National Emergencies Act never defined what a national emergency was.  Finally, collectively all of these laws assumed there would be unwritten norms or conventions that would simply constrain presidential power and that the White House would voluntarily comply with the law.

            Nearly a half-century later, these post-Watergate limits have faded with memory.  The events of 9/11, the financial crisis of 2008, and partisan polarization have all eviscerated the institutional balance of checks and balances of the Constitution.  President’s unable to get their way with Congress, govern by executive order, relying in large part on authority granted to them by Congress. No longer is easy to contend, as Madison argued, that the legislature predominates, we may have the new imperial presidency.

            What is scary is how the impeachment process and Democratic presidential candidates simultaneously attack Trump’s abuse of power but at the same time pledge that if elected would issue a host of executive orders within their first hundred days in office.  For example, Elizabeth Warren has proposed executive orders that cover 21 policy areas.  Amy Klobuchar pledged a list of 100 executive orders she would issue. What would be better to see is a promise among Democratic presidential candidates that if elected that would work to limit presidential power.

            What might some of those new limits be?

            Reauthorize the special prosecutor law to investigate the executive branch.

            Amend the National Emergencies Act to define what constitutes a national emergency and make it clear here and in a new budget act that no national emergency authorizes a president to divert money unless explicitly authorized by Congress.

            Adopt a new War Powers Act that limits presidential authority to initiate first use of nuclear weapons and which requires presidential authority to deploy troops short of congressional declarations of war.

            Amend the Ethics in Government Act to require presidential disclosure of financial interests and taxes, and impose tighter requirements on conflicts of interests, including mandatory blind trusts and absolute bans on personal use of private investments or holdings that conflict with government duties.

            Adoption of a law facilitating and simplifying Congress’s ability to prosecute executive branch officials for failure to comply with document production or appearing to testify.

            As president, direct the Office of Legal Counsel and Justice Department, to reconsider past opinions claiming sitting presidents cannot be indicted for a crime, and urge the Supreme Court to modify its Chevron decision so that disputes in legislative interpretation give priority to congressional intent and meaning.

            Overnight it will not be possible to reassert the balance between Congress and the president.  The impeachment trial in the Senate, as well as the 2020 elections, are a good opportunity to do this.  Yet to do this one needs to realize that the problem is not simply Donald Trump but a larger gravitation of authority from Congress and to the president that needs to stop.

Trump Meets Reality: Why his presidency will be weaker than many hoped or feared

            One of the ironies of American politics is that while the US presidency is arguably the most powerful elected position in the world, the office is also surprisingly weak.  As Donald Trump prepares to take office he may be surprised that for all that he says he wants to do, he may be less power to accomplish them than he and his supporters hoped, or his detractors feared.    The truth is that there are many constraints on US presidential power, dictated by the Constitution and the reality of American politics, international relations, and the precedents set by his predecessors.

            Richard Neustadt’s 1960 Presidential Power arguably endures as the single best book every written on the American presidency.  It opens with a quote from Harry Truman in 1952, offering advice to the incoming president and former general Dwight Eisenhower: “He’ll sit here, and he’ll say, ‘Do this! Do that!’ And nothing will happen. Poor Ike—it won’t be a bit like the Army. He’ll find it very frustrating.”  Neustadt’s use of the Truman quote was to underscore a reality of the American president who cannot simply order people about like kings or business CEOs.  Instead the power of the presidency is the power to persuade.

            Article II of the US Constitution defines the formal constitutional powers of the president that have not changed since George Washington.  But as Neustadt and James David Barber in his President Character contend, it the personality or character of the person who is president, along with a host of other factors that define the ability of presidents to persuade Congress, the media, foreign countries, and the American people to follow them.    These factors include rhetorical and media skills, margins of political victory, knowledge and experience of government, public support, the strength of political opposition, and perhaps the overall likeablity of the persons.  Presidential power is to the power to persuade, but that persuasive power is a form of bargaining power.  Some presidents such as Franklin Roosevelt, Lyndon Johnson, and Ronald Reagan were powerful because of these factors.

            From the New Deal until perhaps recently there was a fear of what Arthur Schlesinger, Jr., termed the “imperial presidency.”  Born of the New Deal regulatory state and the reality of the Cold War and Vietnam, presidents were viewed as dangerously powerful and prone to abuse their authority, as did Richard Nixon.  But we are a long way from days of the imperial presidency and as Stephen Skowronek points out in Presidential Leadership in Political Time: Reprise and Reappraisal, context too demarcates the limits of presidential power.  Today, as a result of Supreme Court decisions–many of which clipped Obama’s power when it came to executive orders and Bill Clinton when it came to issues about legal accountability for personal behavior–Trump inherits a far weaker office than it was a generation ago.

            Soon if not already Trump is about to confront this reality.  He and his supporters and his detractors seem to have forgotten that there is this thing called the Constitution and the Bill of Rights which defines the power of the presidency.  Both contain concepts such as separation of powers, checks and balances, federalism, and the basic rights and liberties which presidents cannot violate.  There are some things President Trump cannot do alone with executive orders or even with legislation. He cannot order states and cities around, he cannot order citizens to do things that are illegal.  And even though Congress is of the same party as he is and he will get to appoint federal judges and a new Supreme Court justice, the logic of the political system that the American constitutional framers designed is one that is resistant to sudden and dramatic change.  Congress and the Supreme Court will have their own institutional identities and interests that will make them resistant to being ordered around by President Trump.

            Moreover, while the attraction of many to Trump was him being an outsider, yet unskilled in Washington politics will make it hard to govern.  President Jimmy Carter was an outsider whose presidency was compromised by his lack of Washington skills even though he was a governor.  Trump does not even have that and many of his senior appointees lack that too. They will soon find themselves out maneuvered by the federal bureaucracy, the senior executive service, and all the others who really run the government and know how to make it work.

            So long as Trump continues to fight the reality of American politics he will get nowhere.  Conversely, as the confirmation hearings are starting to show, in areas such as foreign affairs and intelligence gathering there is a powerful establishment and bureaucracy that will crush Trump if he does not learn how to work with them.  Presidents really have little freedom to change the course of American foreign affairs, with the best predictor of what a new president will do is to look at the previous one.  Besides the constraints of domestic politics, international contexts such as real politics and the support or opposition of allies and enemies dictate narrow courses of action for any president.

            All of the above suggests that Trump is about ready to be inaugurated and confront reality.  He will have to operate in a context that would limit any president.  But now also consider that he is a minority president who did not win the popular vote and had one of the narrowest electoral college victories in history.  He was never popular as a candidate with nearly 60% disapproving of him, and recent polls suggest an approval rating of 37%.  Presidents normally are sworn in with lots of good will, Trump will not have that. He enters a weakened office as a weakened president, lacking the traits that Neustadt, Barber, and Skowronek describe as key to presidential success.   It is not an imperial presidency located in Trump Tower that Trump inherits, but a weak office that can do far less to produce jobs, force Mexico to build a wall and pay for it, and abrogate unilaterally trade agreements without facing political and legal problems.    

            He’ll sit here, and he’ll say, ‘Do this! Do that!’ And nothing will happen. Poor Donald—it won’t be a bit like The Apprentice. He’ll find it very frustrating.”  

Law, Ethics, and Syria: What Should We Do?

Law matters.  But the law is the not sum total of what matters when it comes to asking the question “What is the right thing to do?,” be that in our personal or professional lives.  Often obedience to the law–asking if doing something is legal–is the starting point for evaluating conduct.  But there is a long lineage of people from St. Augustine, Henry David Thoreau, to Martin Luther King, Jr. Who would point out that unjust laws are not morally binding and that in some cases disobeying them is the right thing to do.  Conversely, mere conformity to the letter of the law also does not necessarily mean one is acting ethically or that following the rule is the right thing to do. More is required.  This is also true when it come to the decision by President Obama to take military action against Syria.

            Syria’s use of chemical weapons raises problems for the United States.  Specifically, any use of force raises three questions: 1) presidential authority to act; 2) what is distinct about Syria; and 3) what is the end game for the US?   All three of the questions have to be answered satisfactorily before the United States takes any action.

           

Presidential Authority to Act

            Obama wants congressional approval to use force, but he still had not ruled out doing something absent their acquiescence. What constitutional authority does President Obama have to justify military action in Syria? This is not clear.  Domestically, the two sources of legal authority he 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. Syria  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 advisors such as 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. This was supposedly another issue or lesson learned from Vietnam; presidents should not unilaterally drag the country into war.  LBJ and then Nixon abused their presidential powers when it came to Vietnam.  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 is not invoking the Act in asking Congress to approve.  However, overall, there seems little authority for the president to act here absent congressional approval.

What is distinct about Syria?

            But even if Congress does approve, the second problem is what is distinct about Syria? Assume for now that Obama has the constitutional authority to act. Why Syria and why not Kim Jong-Il in North Korea, Iran, Sudan, or Zimbabwe?  In all of these countries we have repressive dictators or regimes abusing the rights of their people.  Should the US use force in all of these countries to oust dictators?  If mere oppression were the justification for action the US would be busy around the world acting.  Moreover, if mere oppression were enough justification, the US should have ousted Assad years ago.  Something more is required.

            First at the international level is the authority to act.  Article II, section 7 of the United Nations Charter declares: “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction.”  Is not what is happening in Syria a domestic matter and none of our business?  Maybe, but the legal case for it has to be made.  The UN allows for this under international law through resolutions and Security Council action.  With a Russian veto, chances for this type of authorization are nil.  Obama appears to want to justify intervention under international law that bans the use of chemical weapons or by invoking some other principles of humanitarianism, but again the justification is not obvious.

            But even if the United States can find justification under international law to act, there is still another question:  Why should the US act, potentially alone?  Again, Syria 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 it is difficult to see a reason or argument that principally distinguishes Syria from acting in the other countries, unless of course it is the use of chemical weapons.  Similar reasons about weapons of mass destruction led Bush into Iraq and why the US is viewed as a hypocrite when it comes to the country supporting or placating some repressive regimes.

What is the End game?

            The final troubling issue is the end game for Obama. What are our goals and what are we really trying to accomplish? Is it  simply to punish Assad for using chemical weapons?  Is it because he has killed 50,000 of his people?  Do we hope that military action will oust him and if so, what are we prepared to do next?   What is the definition of success and what plans does the country have to exit from intervention?  These are all important questions that need to be asked.  Even if the US merely does drone strikes or other limited action, the US needs to be clear regarding what it hopes to accomplish and prepared for what might be the result?

            During the first Gulf War General Powell espoused a doctrine that has been named after him.  The Powell doctrine, supposedly based on what we learned from Vietnam, said that US military action needed to be evaluated by asking questions regarding clearly defining what national interests are at stake, whether the goals of intervention are clear, is there international support for action, what are the alternatives and risks to military action, and then determining what the end game and exit strategies are.  Using the Powell Doctrine to evaluate the comments by Secretary of State Kerry and Obama recently, it is not clear that they have adequately answered this question.

            What to do with Syria is a difficult question.  But it is a terrific case study in decision making and in demonstrating how questions about legality are only the starting point in determining what is the right thing to do.

Killing Americans: Obama’s Constitutional Arrogance

Barack Obama’s assertion that he has the authority to kill American citizens abroad suspected of being terrorists is disturbing both because of its constitutional arrogance and  because its flimsy legal justification resembles the dubious Bush era arguments for presidential power that he supposedly criticized and repudiated.
    After 9-11, President Bush asserted dubious constitutional authority to prosecute the war on terrorism.  He did that in two ways.  The first was to point to a congressional joint resolution, the Authorization to Use Military Force of September 18, 2001, which urged the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, . . . in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.”  The President declared that this language gave him extensive power to respond to the terrorist attacks.
    Second, regardless of this language, four Justice Department memoranda asserted inherent or extra-constitutional presidential power to respond to terrorism. These memoranda include a September 25, 2001 Department of Justice opinion written by John Yoo which describing presidential war making powers, then a second legal opinion of January 22, 2002 addressing the treatment of al Qaeda and Taliban detainees.  The third memorandum is from August 1, 2002, reviewing the classification and treatment of al-Qaeda held outside the United States, (the torture memo) while the fourth was a January 19, 2006 Department of Justice memorandum supporting President Bush's decision to order the warrantless wiretapping of telephone conversations by the National Security Agency.
     These four memoranda, taken together, framed the Bush Administration's arguments for its post 9-11 foreign policy and national security authority by asserting a conception of presidential power largely exempt from congressional and judicial oversight in foreign affairs and  the conduct of war.  Effectively, Bush argued that the president had inherent  powers as commander-in-chief to torture, wiretap, and detain suspected terrorists, even if they were American citizens, without any constitutional review or authorization.  These legal arguments were severely criticized by most constitutional scholars, and largely ignored by the Supreme Court in several opinions surrounding the detainment  of suspected terrorists at  Guantánamo Bay.
    The Obama Administration’s assertion in a recently released Department of Justice White Paper of presidential authority to kill American citizens abroad suspected of being terrorists rests upon many of the same arguments of Bush, especially the torture memo.  The White Paper argues that the president can order the killing of American citizens if there is insufficient opportunity to capture and detain them and if it would save American lives.
    The memo begins with the claim that it would be constitutional to kill Americans abroad who are in combat zones fighting against the United States.  From there the White Paper  takes the dubious next step to argue that it would be permissible to kill Americans anywhere in the world outside of the United States, even beyond battlefields. It justifies this claim with questionable constitutional logic.  First, it cites Matthews v. Eldridge, a Supreme Court Fourteenth Amendment Due Process case.  Matthews is an administrative law case the defines when the government must provide hearings to individuals denied Social Security benefits.  That case said hearings were not necessary when the cost to the government was greater than the possible injury to someone losing benefits.  Applied here, the benefit of saving American lives outweighs any individual constitutional rights.   
    The problem here is that killing individuals is different from denying Social Security benefits.  This is simply the wrong legal analysis.  A more appropriate one might be to  examine the law governing police use of deadly force.  Here  the Supreme Court has ruled that the Fourth Amendment is the legal standard.  Under the Fourth Amendment the killing of an individual is considered a search and seizure, and an exceedingly high constitutional bar is used to determine whether it is permitted.  The White Paper acknowledges this Fourth Amendment standard, but gives it barely a one paragraph perfunctory dismissal.
     Obama reliance on the deadly force Fourth Amendment analysis is also wrong. Determination of police use of deadly force is subject to judicial review.  The White Paper dismisses the idea that the courts have the right to review its use of force, let alone its determination of who is suspected of being a terrorist.  On it own , presidents can be prosecutor, judge, and executioner, subject to no constitutional checks.  Individuals falsely suspected of being terrorists have no recourse except to duck when the drone strikes.
    Finally, the White Paper extends  two Bush era arguments.  First,  the Authorization  to Use Military Force permits the killing of American citizens abroad anywhere when suspected of being terrorists, especially since there is no geographic limitation in this congressional declaration defining where the president can fight the war on terrorism.  Today Afghanistan, tomorrow Canada?   Lastly, the White Paper simply asserts that the president has the power as commander in chief to kill Americans he suspects as terrorists.
    The White Paper exploits every legal ambiguity and asserts that it favors presidential power.  It makes dubious assertions that run roughshod over legal precedent, and it simply makes the type of claims that the four Bush-era memos made. It is another president aggrandizing constitutional or extra-constitutional power that  does not exist.   He is like Nixon and the secret war in Cambodia or Reagan and Iran-contra. Many expected better from this president.  He was the one who criticized Bush for his lack of transparency and disregard for the Constitution.  Now Obama is doing exactly the same as his predecessor, only taking it to a new level in asserting a right not simply to detain and torture, but to kill.

Four More Years? Obama's Dwindling Prospects in a Second Term

    Four more years for Obama.  Now what?  What does Barack Obama do in his second term and what can he accomplish?  Simply put, his options are limited and the prospects for major success quite limited.
    Presidential power is the power to persuade as Richard Neustadt famously stated. Many factors determine presidential power and the ability to influence including personality (as James David Barber one argued), attitude towards power, margin of victory, public support, support in Congress, and one’s sense of narrative or purpose.  Additionally, presidential power is temporal, often greatest when one is first elected, and it is contextual, affected by competing items on an agenda.  All of these factors affect the political power or capital of a president.
     Presidential power also is a finite and generally decreasing product.  The first hundred days in office–so marked forever by FDR’s first 100 in 1933–are usually a honeymoon period where presidents often get what they want.  FDR gets the first new deal, Ronald Reagan gets Kemp-Roth, George Bush in 2001 gets his tax cuts.
    But over time presidents lose political capital.  Presidents get distracted by world and domestic events, they lose support in Congress or among the American public, or they turn into lame ducks.  This is the problem Obama now faces.
    Obama had a lot of political capital when sworn in as president in 2009.  He won a decisive victory for change with strong approval ratings  and had majorities in Congress with eventually a filibuster margin in the Senate when Al Franken finally took office in July.  Obama used his political capital to secure a stimulus bill and then pass the Affordable Care Act.  He eventually got rid of Don’t Ask, Don’t Tell and secured many other victories.  But Obama was a lousy salesman and he lost what little control of Congress that he had in the 2010 elections.
    Since then Obama has be stymied in securing his agenda.  Moreover, it is really unclear what his agenda for a second term is.  Mitt Romney was essentially right on when arguing that Obama had not offered a plan for four more years beyond what we saw in the first term.  Whatever successes Obama had in the first term, simply do a replay in the next four years will not work.
    First, Obama faces roughly the same hostile Congress going forward as he did for the last two years.  Do not expect to see the Republicans making it easy for him.  Second, the president’s party generally does badly in the sixth year of his term.  This too will be the case in 2014, especially when Democrats have more seats to defend in the Senate than the GOP.
    Third, the president faces a crowded and difficult agenda.  All the many fiscal cliffs and demands to cut the budget will preoccupy his time and resources, depleting money he would like to spend on new programs.  Obama has already signed on to an austerity budget for his next four years–big an bold is not there.  Fourth, the Newtown massacre and Obama’s call for gun reform places him in conflict with the NRA.  This is a major battle competing with the budget, immigration, Iran, and anything else the president will want to do.
    Finally, the president is already a lame duck and will become more so as his second term progress.
    One could go on but the point should be clear–Obama has diminishing time, resources, support, and opportunity to accomplish anything.  His political capital and presidential influence is waning, challenging him to adopt a minimalist agenda for the future.
    What should Obama?  Among the weaknesses of his first term were inattention to filling federal judicial vacancies.   Judges will survive beyond him and this should be a priority for a second term, as well as preparing for Supreme Court vacancies.  He needs also to think about broader structural reform issues that will outlive his presidency, those especially that he can do with executive order.
    Overall, Obama has some small opportunities to do things in the next four years–but the window is small and will rapidly close.