“It’s a fool’s errand you’re involved in,” warned Pulitzer Prize-winning historian Gordon Wood when he was approached and asked to discuss the legacy of President Barack Obama (Wood Reference Wood2015, 1). “We live in a fog, and historians decades from now will tell their society what was happening in 2014. But we don’t know the future” (Wood Reference Wood2015, 1). It is easy for us to look backward and see the successes and failures of presidents past, but their successes and failures also serve as predictors for the creation of future legacies.
The presidency stands not only as one of the most powerful elected positions in the world but also as one of the most problematic. Few presidents are exempt from the challenges that arise during their elected time in office, and many struggle with the problems that were left unattended by their predecessor. In turn, each creates a legacy. Johnson will be remembered for his stand for civil rights legislation as well as his attempts to create the Great Society. Nixon will always be linked with Watergate. Reagan persuaded Congress to approve his economic reforms. Clinton will be viewed as “possessing a severely flawed character, committing errors in his personal life that prompted an unsuccessful attempt to remove him from office” through impeachment (Pika, Maltese, and Rudalevige Reference Pika, Maltese and Rudalevige2015, xi). Bush II will be forever linked with September 11, an economic recession, and weapons of mass destruction that never materialized. What exactly will be the legacy of President Obama? Will it be universal health care, known as Obamacare? Will it be his ability to get legislation passed despite a recalcitrant Congress that tried to stifle his policy agenda? His use of executive orders? Or simply that he was the first black president?
OBAMA: A TRANSFORMATIONAL PRESIDENT?
Obama campaigned on the promise to implement “Change We Can Believe In” (Obama 2008) and, in his subsequent landslide election, Time Magazine proclaimed, “Barack Obama Elected President with Mandate for Change.” With a Republican Congress that wanted him to fail at all costs and a polarized political climate, Obama entered office facing ongoing wars in Iraq and Afghanistan and the worst economic crisis since the Great Depression. Despite these obstacles, he succeeded in getting a $787 billion economic-stimulus package passed; the Dodd–Frank Wall Street Reform and Consumer Protection Act signed into law; Senate confirmation of two Supreme Court Justices; the repeal of “Don’t Ask, Don’t Tell”; Hate Crime Legislation implemented; and Senate ratification of the Strategic Arms Reduction Treaty with Russia (Pika, Maltese, and Rudalevige Reference Pika, Maltese and Rudalevige2015).
Despite low approval ratings in 2011 (38%) and gridlock in Congress following the 2010 midterm elections, Obama won reelection in 2012. Stifled by an uncompromising partisan Congress, he turned to executive orders and unilateral decisions, but even those would face judicial challenges. As noted by Pika, Maltese, and Rudalevige (2015, 529), “[a]ll modern presidents face the same common dilemma: the expectations the public has for them vastly exceeded their capacity to meet these expectations. Bridging that gap is a full-time task, and all presidents end up in similar tactics in their battle to carry it off. This is especially true in the structuring of advice through an enlarged presidential branch.”
This article argues that President Obama, who campaigned as a candidate who would bring about transformative change, in essence, became a transitional president whose legacy very well may be the bridge of opportunity he created for his successor through deliberate partnerships, collaborative approaches to government, and executive signing statements that altered the path of government through a calculated presidential leadership style. In doing so, Obama begins to resemble his predecessor Bush II in ways that he loathed at the onset. This article compares and contrasts the leadership styles of Bush II and Obama. It shows that Obama must “live down” and try to correct the policies and procedures of Bush—who, ironically, attempted to transform the executive power structure of the office—to enact change. Bush often is referred to as a presidential maverick and “cowboy” who shot from the hip and when he made a decision, he was “dead certain.” Footnote 1 In essence, Bush thwarted the Congress through a series of presidential signing statements. Obama, in an attempt to transform the decisions and perceived misuse of executive powers, relied on his background as a constitutional scholar to judiciously examine every decision, which resulted in gridlock and stalled momentum. Citing the killing of Osama bin Laden, this article examines how the president ultimately made the decision to kill the most wanted man in the world. Finally, it demonstrates how Obama actually became Bush-like in his approach to fulfilling his constitutional obligations to lead and protect the United States. Obama, like Bush, at times faced congressional push-back to his presidential agenda. Bush resorted to the use of presidential signing statements and executive orders. Obama, frustrated by a divisive and rebellious Republican Congress, followed in Bush’s steps through the repetitive use of signing statements and executive orders—which he had denounced in 2007. The article concludes by noting that Obama’s legacy still remains in doubt and most likely will be formulated, debated, and developed over time. However, one thing is certain: many of the changes he promised in 2008 still remain as elusive today as they did then and will continue to be obscure in 2016 and beyond. Ultimately, the only transformation may be Obama himself.
PRESIDENT GEORGE W. BUSH: A FORMALIZED COORDINATOR
To begin to formalize a foundational basis for the legacy of President Obama, it is important to understand the type of administration that preceded his tenure in office. In the case of President Obama, this is paramount because he branded himself as being a direct polar opposite to President Bush in management style, in substance, and in his approach to addressing national-security issues such as the war on terrorism and in domestic issues related to the pending recession and economic meltdown.
In the case of President Obama, this is paramount because he branded himself as being a direct polar opposite to President Bush in management style, in substance, and in his approach to addressing national-security issues such as the war on terrorism and in domestic issues related to the pending recession and economic meltdown.
President Bush’s major challenge in his first term was to harmonize the highly visible, assertive personalities of his cabinet nominees including Donald Rumsfeld with a highly experienced vice president whom many believe shielded Bush from political strife (Savage Reference Savage2015). Savage, who spent years with unfettered access to the White House, observed the following:
As a matter of both style and substance, the Bush–Cheney administration had an unlawyerly approach to government. Bush and Cheney were CEOs, not lawyers, by experience and nature. Bush’s leadership style was to be, as he confidently described himself, “the decider,” and he trusted his instincts, acting with dispatch and without extensive deliberations and without second-guessing himself afterward. “I’m not a textbook player, I’m a gut-player,” Bush once said. Cheney was a masterful bureaucratic player, manipulating and side-stepping normal governing processes in order to steamroll or circumvent internal dissent and push through the policy change that he desired. Moreover, many members of the inner circle who were told what was going on by Cheney embraced such sweeping views of executive power that the law was not a factor. They dispatched every hard problem with the same easy answer: the president could do whatever he deemed necessary (Savage Reference Savage2015, 63).
An example of this approach was in June 2004, when photographs of torture at Abu Ghraib prison were printed in the media. The reaction to the photographs set off a firestorm of debate. As the debate continued to fester, Senator John McCain (R-AZ)—who was a former prisoner of war who had been tortured in Vietnam—introduced legislation to make torture illegal. Vice President Cheney launched into full attack mode, demanding that Congress not pass the pending legislation. President Bush threatened to veto the bill, even though he had not vetoed anything in his first five years as president. Congress overwhelmingly passed the legislation, and the veto was off the table. Bush signed the bill into law in the White House and, as everyone was leaving for Christmas recess, he appended a signing statement to it. The statement instructed interrogators to interpret the torture ban in a manner consistent with the president’s powers as commander-in-chief—that is, to proceed full steam ahead (Savage Reference Savage2015).
Ultimately, Bush authored more than 161 signing statements that cumulatively challenged more than 1,100 provisions of new statutes he had signed into law—more than twice as many as all previous presidents combined (Presidential Signing Statements 2016). The implications are simple: Bush was expanding his constitutional theories of executive power with Cheney’s help. Footnote 2 Cheney believed that it was the obligation of the president and vice president to pass off their offices “in better shape than we found them to our successors” (Savage Reference Savage2015, 44).
PRESIDENT OBAMA: LAWYER AND COLLEGIAL COUNSELOR
If the Bush presidency can be satirized as government in the Wild West—crazy cowboy, recklessly shooting from the hip—the Obama era can be viewed as government by judicial constraints—modern phariseeism, meticulous and detailed, constraining and cumbersome. The best accounts of the Obama decision-making system stressed White House control and the president’s personal involvement in the process rather than reliance on a key advisor (an honest broker) to coordinate the process (Pika, Maltese, and Rudalevige Reference Pika, Maltese and Rudalevige2015, 150). Obama did not want or need another Cheney in the White House, and he did not want his administration to be perceived as being out of control, creating exceptions to rules and pulling decisions out of thin air. Savage (2015, 62) noted that Obama “chose to control the details of the policy making himself.” Rather than delegate important tasks to others, particularly in the area of foreign policy, Obama always chaired the meetings on his own, especially during the first year. As one account observed, President Obama “built a machine in which all roads lead to him” (Savage Reference Savage2015, 61).
Adherence to the rule of law is Obama’s approach to governance, and insiders note that it is who he is and not simply a procedure. Savage (2015, 61) noted that Obama “considers it a judicial virtue to move incrementally and stay within the narrow facts of the law.” This approach may convey to constituents and policy makers the belief that the president is detached or apathetic to situations or, in some cases, indifferent about what to do. Cheney referred to the Obama administration as “dithering,” noting that “signals of indecision out of Washington hurt our allies and embolden our adversaries” (CBS 2009, 1). A classic example of Obama’s judicial approach to decision making is seen in the operation to kill Osama bin Laden.
OSAMA BIN LADEN
To understand the legal approach used by Obama and his presidential leadership team, Pika, Maltese, and Rudalevige (2015, 467–8) described how the legal constraints of hunting down the most wanted man in the world came front and center with the killing of Osama bin Laden:
The United States intelligence community had been hunting bin Laden since his 2001 escape from the battle of Tora Bora, a remote, mountainous area of northeastern Afghanistan near the border with Pakistan…. Years had passed before a July 2010 phone intercept traced him to a suspicious compound in Abbottabad.
On March 14, 2011, CIA director Panetta briefed President Obama and his advisers on three possible courses of action. First, intelligence officials could continue surveillance on the compound that lay about 120 miles into Pakistan and hope that bin Laden would be positively identified. Second, the United States could bomb the compound with B-2 stealth bombers able to escape detection by Pakistani radar, but to be confident of killing bin Laden if he had a bomb shelter, they would need to use thirty-two 2,000-pound bombs that would cause extensive destruction to the area. Third, they could deploy a Navy SEAL team by helicopter, though the complex action would have many opportunities for breakdowns. Complicating the decision, the CIA was only 50% to 80% confident that bin Laden was there. Obama ordered a full review of the intelligence collected on the compound and instructed his team to plan for all contingencies, including performing a proper Islamic burial for bin Laden, and prohibited the release of any images of the dead terrorist leader in the immediate aftermath of the operation in order to avoid inflaming Muslim opinion.
Despite its high risk of failure, the raid was ordered on April 28. It did not go flawlessly, but it was successful. Nine years, seven months, and twenty days after the attacks of 9-11, bin Laden was dead.
As the dust settled and the decision process praised Obama for killing bin Laden, Defense Secretary Gates appeared on 60 Minutes and praised the president for “undertaking a daring raid into a sovereign nation only after a judicious consideration of all the intelligence and its implications” (CNN 2011).
SIGNING STATEMENTS AND EXECUTIVE ORDERS
When presidential candidate Senator Barack Obama announced his candidacy for the highest office in the land, he vehemently opposed the use of signing statements and often questioned Bush’s use of executive orders. In 2007, when questioned by The Boston Globe, Obama stated that he would not “use signing statements to nullify or undermine congressional instructions as enacted into law. The problem with this administration is that it has attached signing statements to legislation in an effort to change the meaning of the legislation, to avoid enforcing certain provisions of the legislation that the president does not like and to raise implausible or dubious constitutional objections to legislation” (Washington Post 2014).
Fast-forward to 2015 and seven-plus years of congressional gridlock and divisiveness: Obama has become Bush-like in his approach to getting things done.
While on the campaign trail in 2008, Obama repeated his claim by noting: “The biggest problems we’re facing right now have to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all. And that’s what I intend to reverse when I’m President of the United States of America” (Houck Reference Houck2013, 1). Fast-forward to 2015 and seven-plus years of congressional gridlock and divisiveness: Obama has become Bush-like in his approach to getting things done. Gone are the concerns about judicial oversight, judicial review, and the constitutionality of executive-power expansion. From his inauguration through November 25, 2015, President Obama issued 31 signing statements affecting 97 specified provisions and making six mentions of unspecified provisions of law in 30 congressional enactments. Obama issued 12 rhetorical signing statements, 18 constitutional signing statements, and one statement remarking on an “inadvertent technical drafting error” in the affected bill (Presidential Signing Statements 2016). “The difference is really with volume, not in kind,” noted Evans (Washington Post 2014).
Perhaps the most controversial of all of Obama’s presidential signing statements centers around the release of Army Sergeant Bowe Bergdahl in exchange for five Taliban commanders who were being detained at Guantanamo Bay, Cuba. In May 2013, Obama signed into law H.R. 3304, the National Defense Authorization Act for Fiscal Year 2014 (P.L. 113-66), which mandates that the Defense Secretary must notify relevant congressional committees at least 30 days before transferring anyone from Guantanamo Bay and must provide assurances that those released would not be in a position to again threaten the United States or its interests (Washington Post 2014). However, when signing the bill into law, Obama attached a presidential signing statement noting: “Section 1035 does not, however, eliminate all of the unwarranted limitations on foreign transfers and, in certain circumstances, would violate constitutional separation-of-powers principles. The executive branch must have the flexibility, among other things, to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers” (Presidential Signing Statements 2016). Footnote 3
Executive orders are another example of how Bush and Obama are strikingly similar. Bush signed 291 executive orders during his eight years in office; Obama is not far behind with 231 (Presidential Signing Statements 2016). In his 2014 State of the Union Address, President Obama explicitly stated that he would respond to congressional obstruction by finding measures that could be implemented in the absence of congressional action. He noted, “America does not stand still—and neither will I. So wherever and whenever I can take steps without legislation to expand opportunity for more American families, that’s what I’m going to do” (Obama Reference Obama2014). Congressional Democrats have defended the president’s approach, asserting that Republicans want a “do-nothing president” in addition to a “do-nothing Congress.”
Meanwhile, scholars are divided on whether the president is overreaching in terms of executive authority. Footnote 4 Many contend that Obama’s assertion of unilateral executive authority is simply routine procedure. He is following in the footsteps of his predecessors on a path set out by Congress. However, Michael McConnell, a former federal judge, disagreed: “While the president does have substantial discretion about how to enforce a law, he has no discretion about whether to do so.... Of all the stretches of executive power Americans have seen in the past few years, the president’s unilateral suspension of statutes may have the most disturbing long-term effects” (McConnell Reference McConnell2013, 1).
OBAMA’S LEGACY?
Obama will be remembered for continuing to protect a country in an era of blurry lines. His leadership style and decisions about responsibilities related to policy making and implementation created irreconcilable tensions that could be managed but not resolved (Savage Reference Savage2015, 694–5). Although many will argue that Obama worked judiciously to transform the presidency, the Congress, and the country, it is likely that he will be remembered as becoming similar to Bush in his approach to getting things done. He very well may be remembered as less of a transformative post–September 11 president and more as a transitional one: “as a bridge builder to a legal-policy decision destination that will be determined by his successor, future Congresses, and the world as it is rather than as one might want it to be” (Savage Reference Savage2015, 698).
