11/12/2014 08:09 pm ET Updated Dec 06, 2017

What Obama Should Say Now


There is a very old tactic in American politics, used for decades after the Civil War, which is called "waving the bloody shirt." Without getting into the ugly details of Reconstruction (or the ugly details of the Democratic Party's own "Red Shirts," for that matter), the definition of "waving the bloody shirt" soon became akin to "using past injustices to divert attention from present-day issues." Holding a big grudge, in other words, and then milking it for all it is politically worth.

This was brought to mind by one of the metaphors the Republicans are deploying in a pre-emptive attempt to convince President Obama not to act on his own on immigration reform: "waving a red flag in front of a bull." There are others, including "poisoning the well," and "playing with matches," but the red flag one was the one that struck a historical chord with me.

President Obama is going to be the unquestioned leader of the Democratic Party for the next two years. Harry Reid and Nancy Pelosi have been relegated to minority status in Congress, leaving only one prominent voice to stand up for the Democratic agenda. How Obama chooses to do so in the next few weeks is going to set the tone for the next two years. It may indeed involve waving red flags or lighting fires under Mitch McConnell and John Boehner, since nothing's going to get done unless all three men agree.

What follows is my humble suggestion for what Obama should say when he returns from abroad. I realize it is a bit unrealistic, since the first part is simply not going to happen anytime soon in Congress. But Obama can get out in front of the issue and by doing so show the inside-the-Beltway punditocracy how ridiculous the whole "everyone's going to play nice now" theme (that they've been obsessed with since the election) truly is. The second item is also divorced somewhat from reality, since it merely reinforces a fantastical theme Republicans have been pushing, also since the election. There is absolutely nothing to stop Congress from legislating on immigration reform no matter what Obama does or does not do on the issue. But Republicans have seemingly convinced themselves that Congress either can't act or is precluded from acting by President Obama's own executive actions. This is preposterous -- if Obama acts, Congress can also act any time it chooses -- but this is the line Republicans have taken, so Obama should play into their artificial construct to make his own political point.

Obama needs to strongly show that no election instantly changes what the two parties believe, and that all this talk of waving red flags cuts both ways. Republicans can't play the angry bull if they're busy waving their own red flags at Obama, to put it another way -- and the media shouldn't let them get away with doing so. Congress, as an institution, could indeed act quickly to avoid some Obamacare chaos, but they likely won't. And just because Obama announces a new immigration policy, it doesn't preclude Congress from acting. What follows is my suggestion for how President Obama should present these two ideas (perhaps in a press conference), immediately after he returns to Washington.


Proposed speech for President Obama

I'm going to speak today about two issues: immigration reform and the Affordable Care Act case currently before the Supreme Court. But before I do, I'd like to address some recent comments about partisanship and gridlock. Some Republicans are saying any action I might do on immigration would be confrontational to them in the extreme -- that I would not be giving them a chance to be heard on the issue, and that it would be no more than sheer political provocation. I think what I'm going to announce today will take care of the first part of that, which I'll address in a minute, but I have to say one thing about the second part.

Why is there no equivalence between what Republicans call me provoking them, and what they've announced will be one of their first priorities in the new Congress? Why is making yet another futile attempt to "repeal Obamacare" not seen as provocative? The House of Representative has voted 50 times to do so -- not that the 50th was any more successful than the 49th... or the 48th... or the first, for that matter. Let me be crystal clear, right from the start -- if the new Senate votes on a repeal bill and puts it on my desk, it will be vetoed. Period. So any time or effort taken to do so should be seen as nothing more than, to use their metaphors, "playing with fire" or "waving a red flag in front of a bull." Or, to put it another way, a continuation of endless partisan gridlock.

There has been a lot of talk since the recent election about "getting Washington to work" and "getting things done" rather than pursuing endless partisan gridlock as if it were some sort of game or reality television show. Instead of spending weeks passing a repeal bill that will be vetoed, I instead call on Congress to make a very small technical fix to the Affordable Care Act -- a small fix that could avoid enormously disastrous consequences for millions of Americans. I think the American people want to see me and Congress work together to solve problems before they happen, and I am challenging them to show some good faith by doing so.

The Supreme Court has decided to take up a case which could have drastic consequences for millions of Americans who now have affordable heath insurance thanks to the Affordable Care Act. The reason this case exists is, in essence, because Congress made a typo when drawing up the law. In one single instance, where they should have written "state and federal health insurance exchanges," they instead only wrote "state." Now, this isn't some esoteric legal argument about what was meant in one phrase of the Constitution by the Framers (who are long dead), this is a legal argument about the intent of a law passed only a few years ago. The people who drafted it are still very much alive, and they universally agree that what was meant was that subsidies would be available to all Americans, whether their state set up an individual exchange or whether their state deferred that responsibility to the federal government. It's really a no-brainer -- all American citizens should be treated equally, no matter what state they live in. This is why we're confident that the court will rule in our favor, if it comes to that.

But Congress could fix the problem, and save the Supreme Court some time. I call on the leadership from both houses of Congress to immediately pass a one-sentence bill which changes the offending typo to read what everybody meant it to read in the first place. That's all it would take -- a bill one sentence long. It would be the work of a single afternoon in Congress. By passing such a bill, Congress could solve the legal problem and the court case could easily be dismissed as no more than a moot point. If the Supreme Court were to rule that one typo -- a typo contradicted numerous times in other parts of the same law -- was the actual intent of the drafters, it would immediately throw the health insurance marketplaces into chaos. At this point, Congress would have to act one way or another. But this possible crisis can be easily avoided, by passing a fix now.

So, rather than just fanning the flames of partisanship for a lost cause that will be vetoed, why doesn't Congress actually work to get something positive done? Nobody in their right minds -- other than the lawyers who are paid to -- thinks that the people drafting the law meant to spell out any difference whatsoever between a Kentuckian who signs up for health insurance on Kynect and a South Carolinian who does so via It's patently obvious that federal law should treat them the same, and treat their subsidies the same. Congress should take one afternoon, pass a one-sentence bill, and solve this problem so the Supreme Court can spend its time more productively.

The other subject I'd like to address today is my upcoming announcement on deportation policy and immigration reform. I will be making the final announcement of the new policy soon, so you'll have to excuse me for not revealing all the details right now, but what I can do now is speak to the issue of congressional involvement. What I am going to announce will be a change in policy that will begin on the first of May, next year. That is the deadline for Congress to act on comprehensive immigration reform, before my new policy takes effect. This gives both the outgoing lame-duck Congress and the incoming 114th Congress time to act, should they choose to do so.

Acting before the end of the year would be the easier of these two routes, because the Senate passed a comprehensive immigration reform bill almost a year and a half ago -- by an overwhelmingly bipartisan majority of 68 votes. This bill can be taken up at any time in the remaining weeks of this year by the House, passed, and put on my desk. This bill doubles the size of the Border Patrol, which could have been accomplished by now if the House had acted in a timely manner rather than dither for over a year. I have been waiting a long time for action, but it seems that without a deadline hanging over their heads, nothing gets done in Congress these days.

Perhaps Republicans want the new Congress to tackle the issue instead of the outgoing Congress. Fair enough. But endless delay is no longer an option. I've heard more times than I can count: "Just give us some time, Republicans will come up with our own bill," immediately followed by nothing ever getting done. That is no longer acceptable. People have been in limbo long enough.

I will be announcing changes that I can legally make to federal policy, but these changes will not take effect for over five months. Congress can choose to take that time and formulate a policy that can pass both houses and which I can sign, or it can choose to spend its time on other things. It is entirely their choice. If Republicans think they've got a better solution to the problem, then I am always willing to listen. But my patience is nearing its end. Waiting two years or more after the Senate passed a bipartisan solution is too long for me to wait, and too long for the people affected to wait. Which is why my new policy will take effect if Congress does nothing before the first of May. That's their new deadline.

Mind you, I could have announced that the new policy will be taking effect tomorrow. That would indeed have been provocative, because it would not have allowed Congress time to react to the new policy. I will not do so, because I truly believe it would be better for America for Congress to be involved in the process. But I refuse to delay any longer on some vague promise that delay now could maybe possibly mean some future congressional action. I have heard promises like this before from Republicans in Congress, and they still have not acted. So my new policy -- and again, you'll have to wait for the details for a few more days -- will mark an end to the endless delays, one way or another.

Congress can choose to act, and put something on my desk that I can actually sign. Or they can choose not to act, in which case my new executive action will take effect next May. Either way, federal policy is going to change. The only question will be whether Republicans want any say in how it does change, and what it changes to. They will have ample opportunity to do so, and it shouldn't take all that long -- the issue has been endlessly debated for years.

Republicans in Congress can choose to get things done. Or they can choose not to. But they should bear full responsibility either way. If Congress chooses not to act to fix one typo in the Affordable Care Act, then an easily-avoidable chaos could be the result. Democrats do not want this chaos, they want to see every American treated equally by the law, no matter what state they live in. Republicans in Congress are now on notice that my upcoming immigration and deportation policy announcement will include the implementation date of next May. They have until then to act differently, if they want to see a different policy enacted. If they choose not to do so, then the consequences will be clear -- my new policy will take place instead.

Are Republicans serious about wanting to govern? We will see. They can dump poison in the well, or wave that red shirt if they want -- but the upshot is that they will achieve nothing more than a continuation of the gridlock the American people are so tired of. Or they could choose to participate in the process and pass their own ideas and plans on how to solve America's problems. They'll have to work with me, because I have my own principles that I am not going to abandon, and I have dusted off my veto pen in case they do send me any "red shirt" bills. I am willing to work with them up to a point. If they are willing to work with me, then we can get some things done. If not, then nothing much will get better in Washington for the next two years. The choice is entirely up to them.


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