08/27/2014 09:31 am ET Updated Oct 27, 2014

Tough Choices Indeed -- For Everybody

At the very least, Hillary Clinton came up with a timely book title. Hard choices confront policymakers in the U.S. and abroad in a seemingly overwhelming quantity. Never mind blaming all policy "gridlock" on "maximalist politics." There has indeed been a good deal of that in recent years fueled by the realities of on-line fundraising, the Citizens United ruling and talk radio. But that's not the whole story. Some of the choices are just plain "hard" and that means any official who gets caught actually making a "choice" is going to be pilloried from all sides and his or her "approval rating" -- the most pernicious polling device ever invented -- will plummet even lower than the rating that prevails while dithering.

Three boxes sit on any policymaker's desk: "In," "Out" And "Too Hard."
Comprehensive immigration reform typifies the kind of issue that inhabits the "Too Hard" box, where it has sat for many years. As is common to the "Too Hard" box, the need for a fix is glaringly obvious. The outlines of a fix, moreover, are also reasonably evident. But those who actually have to decide the set of issues and make a real choice are also deeply convinced that, however low their dreaded "approval rating" is now, it is guaranteed to be lower once a resolution is actually decided. And the longer an item stays in the "Too Hard" box, the more this impression becomes embedded. This is because the "decider" knows that none of the "sides" in the matter will be satisfied with the chosen outcome unless it consists of total victory for themselves.

Policymakers aren't making this stuff up. History abounds with examples of the "Too Hard" box issues that took not years but decades to resolve. The "Troubles" in Northern Ireland, for one example. Israel/Egypt was another. In both, only an unusual confluence of circumstance and personal leadership created an opportunity to move these issues out from the "safety" of the "box" and into an essentially enduring resolution. Same with the end of Apartheid and transition to a pluralistic rule in South Africa. But the Israeli/Palestinian/Hamas conflict remains an ever more current and confounding "Too Hard" box issue for all the players.

Likewise when someone tries to take an issue out of the box without fully building an enduring consensus among the competing interests, the result can be unsatisfying and politically punitive: think ObamaCare.

Here the obvious "compromise" fix was to reject the Left's insistence on a "public option" and rather adapt the Right's notion of a "market-based" expansion of both insurance pools and coverage underwritten by a "public mandate" on both employers and individuals. But instead of "buy-in' from both sides, the hard-liners on each side quickly disowned the resolution, leaving the President's "approval" to sink under the weight of the rage of both "sides" and - more importantly - the unintended transference of the public's inherent distrust of the private insurance market onto the very government which the public was asking to rein in abusive the insurance practices!

No good deed (no more preexisting conditions, higher prices for women, sick kid kick-offs), as the saying goes, goes unpunished (in the approval polls). Any politician watching what happened to Obama after passage of the Affordable Care Act quickly put a "Too Hard" box on his or her desk if one was not already there.

Judges actually have it easier on this score. They certainly tend to get the "Hardest Cases," including ObamaCare, but they generally have life tenure so they don't need to worry about approval ratings. Moreover, they get to issue "dissents" if they lose and thus at least create the impression of living to fight another day. Yet the Court probably should have kept Bush v. Gore in its own, seldom-used "Too Hard box" (a "political question"). It may be tempted to do so with the coming cases on same-sex marriage ("certiorari improvidently granted") in view of contemporary analysis questioning the timing wisdom of Roe v. Wade vis-a vis the emerging pace of political change. But is same-sex marriage really a "Too Hard" a case as Bush v. Gore? Why should a Federal Constitutional level freedom and right (however lately perceived) wait upon intricate, complex state constitutional amendment processes for vindication?

The real "Hard Cases" -- and their possible solutions -- are these:

1) ISIS: if Obama bombs them in Syria, which appears necessary to put them out of business, it will also help the rag-tag rebels who we earlier concluded had no hope of taking it to Assad. We didn't want to waste equipment on them that would only be lost to ISIS as with the Iraqi Army. But here the way out of the box is pretty straightforward. Assad is evil, but the lesser evil for the U.S. as compared with ISIS, because Assad poses no direct threat to the Homeland. Bomb ISIS: approval rating will go up, and terror threat will go down.

2) Ferguson: if the Missouri Governor appoints a special prosecutor, he will be giving in to what many perceive as a mob, but if he lets a possibly tainted prosecutor stay in place the result (whether an indictment or not) will never be viewed as legitimate by the losing "side"). With a 12-member grand jury only 25 percent black (at least a better representation than the Ferguson police force), put in a neutral prosecutor, take the short-term heat, but enhance the chances for tamping down the rancor especially if the officer's conduct is vindicated by a preponderance of eyewitness testimony supporting a genuine perceived threat of grievous bodily hard by a person out of control. The answer will probably come from more from ballistics analysis rather than conflicting eyewitnesses. (Think Warren Commission -- speaking of 'Too Hard" cases!)

3) Executive Immigration "Amnesty": if Obama acts on his own with a conditional type of "pardon" before the November election, he risks a backlash among true supporters of comprehensive immigration reform who would rather see permanent legislation as well the obvious outrage from the Tea Party and the GOP. But if he doesn't, his Hispanic supporters will sense a wimp-out and stay home from the polls. But if he simply announces, before the election, exactly what he will do effective January 1, 2015, and give the lame duck Congress "one last chance" to pass comprehensive reform before year end, he will be following more or less the same pattern that Lincoln used with the Emancipation Proclamation (with a stronger war-powers underpinning to begin with). Lincoln's action became effective on January 1 after a September 22 "proclamation." Watch that date - a Monday - for Obama's decision.


By Terry Connelly, Dean Emeritus, Ageno School of Business, Golden Gate University

Terry Connelly is an economic expert and dean emeritus of the Ageno School of Business at Golden Gate University in San Francisco. Terry holds a law degree from NYU School of Law and his professional history includes positions with Ernst & Young Australia, the Queensland University of Technology Graduate School of Business, New York law firm Cravath, Swaine & Moore, global chief of staff at Salomon Brothers investment banking firm and global head of investment banking at Cowen & Company. In conjunction with Golden Gate University President Dan Angel, Terry co-authored Riptide: The New Normal In Higher Education.