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Robert J. Spitzer

Robert J. Spitzer

Posted: January 5, 2011 12:59 PM

Like most previous presidents, including, most recently, Bill Clinton in 1995 and George W. Bush in 2007, Barack Obama will face a partisan landscape sloped more heavily against him when the 112th Congress convenes on January 5. Like every president since Nixon, he will emphasize administrative means to achieve policy goals (what political scientists call an "administrative presidency"), and focus less on a Congress where the Republican-controlled House can thwart any Democratic initiative, and a four-vote swing in the Senate can present Obama with legislation he may not abide.

Yet as tempting as the administrative route sounds, its limitations are manifold, chiefly because major policy change still runs through Congress. Compare, for example, the landmark health care reform passed by Congress last spring with an administrative regulation, effective January 1, to cover end-of-life planning, a small provision stripped out of the larger bill in the face of fatuous "death panel" claims.

With Republicans anxious to roll back health care among other Democratic initiatives, the president will be forced to play defense. Yet Obama should reject his predecessor's weapon of choice, excessive and abusive use of the suspect signing statement, a device Bush employed to rewrite legislation in nearly 1200 instances -- more than twice as many as every other president in history combined -- and instead rely on the Constitution's weapon of choice: the conventional veto. (Tellingly, Bush only vetoed 12 bills in eight years, the lowest per year average of any president in 150 years.) Three historical qualities of the power recommend presidential reliance on it.

First, viewed today as simply the power to say "no," the Founders knew better. To them, it was the "revisionary power;" in fact, the draft Constitution referenced "revision" in the described veto process until the document was finalized. James Madison referred to the veto and to subsequent congressional consideration as "separate revision." The veto meant more than "no"; it was a final chance for constructive improvement of legislation by both branches.

Second, Alexander Hamilton noted another trait of the veto: its "silent and unperceived, though forcible, operation," known today as the veto threat. Obama had little need to hold the veto sword of Damocles over bills in the last two years, but undoubtedly will in the months ahead. If issued with forceful consistency, the veto threat often accomplishes the purpose of an actual veto. But if it doesn't, the veto's third trait might: its use as a method to appeal to the public. Among early presidents, Andrew Jackson mastered this ploy most famously in his veto of the bank bill in 1832, a politically tumultuous action that became the centerpiece of his re-election that year. Even though Franklin D. Roosevelt governed with favorable political winds, he used the veto both prolifically (second only to Grover Cleveland in per year use) and melodramatically, as in 1935 when he announced with great fanfare that he would deliver his veto of a veterans' bonus bill personally to a joint session of Congress, and read his veto message on national radio.

Presidents cannot govern successfully by veto alone. Those who have tried, from Andrew Johnson to Gerald Ford, have fared poorly in both political effect and policy result. Yet even presidents who governed in favorable political circumstances, like FDR, have valued a veto strategy. Obama's continuing call for bipartisanship underscores his appreciation that the country wants a president who acts, not merely reacts. But the new, Tea Party-tainted Congress is spoiling for confrontation, not conciliation. It is the ideal moment for a true veto strategy.

Spitzer is the author of The Presidential Veto.