What can Americans expect this time around? We asked a presidential expert and two Congressional scholars what they anticipate from President Obama and the potential for Congress to pass any meaningful legislation.
Lame duck?If history is any indication, Obama will have a hard time avoiding the "lame duck" tag assigned to previous presidents with Congress firmly stacked against them. John Burke, the John G. McCullough Professor of Political Science and associate dean of the College of Arts and Sciences, says the last two years of a second-term presidency are almost always the least productive, and that attention has already shifted to the 2016 presidential election.
“Obama and his aides have already realized that passage of major legislation is imperiled,” says Burke, who has written eight books on presidential transitions and second terms. “It is essentially over for major legislation. The one exception might be -- if you squint real hard -- the Eisenhower administration, which saw the admission of Hawaii as a state in 1959 and a 1960 civil rights bill that closed some loopholes in the 1957 Civil Rights Act.”
Garrison Nelson, professor of political science and editor of the seven-volume set, Committees in the U.S. Congress, 1789-2010, points out that since the passage of the 22nd Amendment in 1951 limiting presidents to two elected terms, all five re-elected presidents -- Eisenhower, Reagan, Clinton, George W. Bush and Obama -- “become lame ducks the day of the second inauguration.”
Eileen Burgin, professor of political science and author of dozens of scholarly publications addressing issues related to Congress with a focus on foreign policy and health policy, agrees with Burke that the passage of major legislation is unlikely, but thinks the GOP has “significant incentives to show that it can govern effectively, and not just be the party of ‘No.’” Despite the rhetoric on both sides about cooperation, Burgin expects Republicans to “seize on Obama’s executive order on immigration to justify their actions.”
Burke’s take on Obama’s penchant for using “executive orders in lieu of legislation,” despite having issued fewer than any other president after World War II save George W. Bush, is that they could be reversed by the next president. “The danger is that his successor can simply rescind them with the stroke of a pen,” he says. “Congress might also pass legislation rejecting them. However, even with an executive order on immigration (Burke notes that it was actually a presidential memorandum), the Democrats will have the power of filibuster in the Senate and the likelihood of a presidential veto.”
Burgin, who served as a staff member in the House, expects legislative activity surrounding the Affordable Care Act, starting with a symbolic vote to repeal it, which if passed, Obama would veto. Regardless, Republicans will continue efforts to nullify the law by weakening and removing particular provisions, she says. “Because the ACA is not really one program, but rather a conglomeration of regulations, programs, subsidies, and mandates, Obama will need to actively use his veto pen to preserve the ACA’s core goals of achieving near universal health insurance coverage and restraining health insurance costs.”
The power of appointments Burke and Burgin agree on two key areas where Obama is now more vulnerable: judicial and other appointments requiring Senate approval. Burke sees Obama’s nomination of Loretta Lynch to replace Eric Holder as attorney general as having become more problematic. “It will be interesting to watch what Senate Republicans do. Is Lynch more preferable to Holder, who remains on the job until a successor is confirmed?”
As for federal judicial appointments at levels below the Supreme Court, Burke makes an important procedural observation. “Here, filibuster rules have changed to a simple majority, yet the GOP control of the Senate now makes these subject to greater scrutiny and possible defeat. Obama made great strides this year in getting his federal judges confirmed. That will likely now cease.”
Burgin also expects Republicans to seek revenge for the filibuster rule change. “It understandably angered Republicans, who could successfully stymie Obama in filling federal court vacancies, especially with new Senate Republicans coming from the House of Representatives, where partisan warfare is even more the norm. We may witness additional, and I would argue short-sighted, rule changes that effectively make the Senate more like the House of Representatives.”
The Vermont effectNelson, who also writes about Vermont politics and judicial appointments, says the loss of control of the Senate by Democrats is more of a loss of prestige than power for U.S. Senators Patrick Leahy and Bernie Sanders.
“Leahy will relinquish his role as Senate President pro tempore, which is a position of prestige, but not power. Although Pat and Bernie will lose their chairmanships of Judiciary and Veterans Affairs, respectively, both will remain senior members of those committees, and Bernie has been able to work out bipartisan arrangements on VA matters. Leahy loses a little more power in that he will no longer be the major gatekeeper for Obama's judicial appointments. This will make any Supreme Court confirmation made by Obama very difficult to obtain.”
Burgin agrees that Leahy’s departure as Senate President pro tempore is primarily a loss of prestige, but sees his handing over of the gavel of the Senate Judiciary Committee as a “significant loss for Senator Leahy and for the Democrats more generally.” The Judiciary Committee in both chambers, she adds, is known to be “one of the most politically polarized committees because of the types of issues over which it has jurisdiction. And, in a notoriously polarized committee in a time of intense, venomous partisanship, the ranking minority member (presumably Leahy), will have little power.”
As for Sanders’ position on the Veterans Affairs Committee, Burgin says his ability to forge bipartisan agreements on VA matters does not necessarily mean that the new majority “will seek similar bipartisan deals with Bernie rather than going it alone.”
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