A Sweeping Rejection of President Bush

Left-liberal groups are quick to declare Barack Obama’s win a broad endorsement of the “progressive” agenda, their highly inaccurate name for more taxes, more spending, more entitlements, and more regulation. After a trillion-dollar increase in federal spending during the Bush administration and the biggest expansion of entitlements since Lyndon Johnson, it hardly seems likely that what’s troubling the American economy or the American people is an insufficiency of government.

The big problem for John McCain and the rest of the Republicans last night was George W. Bush and his big-government conservatism. Bush had a 25 percent approval rating, and Congress’s was even lower. Republicans hoped up until election day that voters would notice that the unpopular Congress was run by Democrats. But after 8 years of Bush and 12 years of a Republican Congress, just recently ended, voters saw the Republicans as the incumbents who were responsible for the mess in Washington. Concerns about Obama were sufficient to allow McCain to run 20 points ahead of Bush’s approval rating in a time of economic crisis. But the hole was too deep.

Bush and the Republicans promised choice, freedom, reform, and a restrained federal government. They delivered massive overspending, the biggest expansion of entitlements in 40 years, centralization of education, a floundering war, an imperial presidency, civil liberties abuses, the intrusion of the federal government into social issues and personal freedoms, and finally a $700 billion bailout of Wall Street that just kept on growing in the last month of the campaign. Voters who believed in limited government had every reason to reject that record.

Commentators who talk about whether the Republican party moved too far to the right, or too far to the center, miss the point. There are different kinds of “right.” See this New York Times graphic on independent voters, which picks up on some of the themes we’ve talked about in our work on libertarian voters. Lots of independents – as well as voters who identify with one of the major parties – hold broadly libertarian, or “fiscally conservative and socially liberal,” views. A lot of those voters moved from voting Republican to voting Democratic between 2000 and 2006, and it looks like they did so again this year.

As we had predicted, Republicans racked up further losses in the most libertarian parts of the country, such as New Hampshire and the Mountain West. Obama won affluent, educated voters and professionals. And if conservative Republicans continue to respond to the loss of educated voters by declaring themselves proud to be “real Americans” who don’t care much for book learning and Darwinism and elite stuff, they will only accelerate the process.

Big-government conservatism, a toxic combination of the religious right and the neoconservatives, lost badly on Tuesday. But the voters didn’t give a ringing endorsement to big-government liberalism. Fifty-nine percent of voters call themselves “fiscally conservative and socially liberal,” and that’s a rich vein the Republican party is ignoring. If Obama governs as a centrist, he may make it very difficult for the Republicans to recover. But a candidate in either party who presented himself as a product of the social freedom of the Sixties and the economic freedom of the Eighties would be tapping into a market that both parties have yet to nail down.

Cato Today

Op-Ed: “Will the GOP Learn from This?” by Michael Tanner in the Orange County Register

As it emerges from the electoral rubble, the Republican Party must decide what it actually believes in before beginning rebuilding its battered fortune.

Michael Tanner on the election landslide

Republicans now have two more years in the wilderness to decide whether or not they actually stand for limited government and individual liberty. One wonders, whether they will hear the message.

Article: “Advice to President-elect Obama,” by Will Wilkinson in Marketplace

Here’s my advice: First, you’ve got to get spending under control….Second, drop the xenophobic claptrap….Third, get real on the ‘new energy economy.’

Op-Ed: “Is It Constitutional?” by Richard Rahn in the Washington Times

Which section of the U.S. Constitution gives the federal government the power to bail out banks? If you don’t know, it could be because no constitutional authority exists for such an action. It is all too common for both Congress and the executive branch to ignore that the Constitution limits what they can and cannot do.

Op-Ed: “US Urged to Overhaul Nuclear Arsenal,” by David Isenberg in the Asia Times

The handling of US nuclear weapons and policy were recently center-stage due to two different events. First was the release on October 24 of a report billed as a nuclear weapons roadmap for the future by the US Air Force. Titled “Reinvigorating the Air Force Nuclear Enterprise”, it called for the establishment of a global strike command and a headquarters for air force staff to handle nuclear assets.

The Gap between Exit Polls and Reality

As of Wednesday afternoon with 97 percent of the results in, the poll results indicated that Obama had 52.4 percent of the popular vote. This means that everyone else (including John McCain, Bob Barr and Ralph Nader and “other”) received 47.6 percent. That is, Obama outpolled the rest by 4.8 percent.

But according to the exit polls, 13% of the electorate was black and they cast their votes 95 percent to 4 percent for Obama. This means that the black vote alone should have given Obama 11.8 percent more of the vote than the rest of the field [Because 11.8 = 13 x (0.95-0.04)].

In fact, based on the exit poll data, Obama should have outpolled the rest of the field by 7.3 percent, rather than 4.8 percent. See the following table.

% of voters



Spread (in %)




























Clearly, unless the vast majority of untallied votes are for Obama or voting machines are biased against him, exit polls are just too problematic to be used either because they don’t constitute a true random sample, there’s a lot of lying going on, or perhaps both.

SCOTUS Hearts Obama?

Will the Supreme Court be more, or less, of a check on the president during an Obama administration?

My guess:  Less.

First, as Gene Healy notes, Barack Obama has every incentive to preserve and enhance the power of the president.  His “Yes we can!” Justice Department will not be filing briefs with the Court telling it to take the president’s power away.

Second, the judges rumored to be on Obama’s short list for the Supreme Court, like Harvard Law Dean Elena Kagan, are hardly unfriendly to the presidency.  As a scholar, Kagan is perhaps best known for her smart, nuanced 2001 law review article, Presidential Administration, which – while differing in many nuanced respects from Bush era legal framework for thinking about executive power – celebrates the president’s power to “jolt” bureaucrats “into action … [for] a distinctly activist and pro-regulatory governing agenda.”  She argues that federal courts should interpret the president’s statutory authority in ways that facilitate and enhance, rather than limit, the president’s powers.  Look for judicial appointments with similar views.

Third, my guess is that the Supreme Court as a whole, no matter who is on it, is likely to prove more congenial to Obama than it was to Bush.  As Neal Katyal argued in the Cato Supreme Court Review, Jody Freeman and Adrian Vermeule expand in the non-Cato Supreme Court Review, and Jack Goldsmith suggests in The Terror Presidency, the Supreme Court’s pushback against the Bush administration is at least partly a response to the Bush administration’s tin-eared and sweeping claims in favor of “inherent” executive power.  Even Bush’s Solicitor General, Ted Olson, is rumored to have advised this legal strategy would backfire by alienating the Court.

The Obama administration is likely to be smarter, by inviting the court to uphold various exercises of executive power on a case-by-case basis, rather than based on sweeping claims that the court must cede vasts swaths of decision making to the executive.  The court likes the former kind of argument for obvious reasons – it requires the president to check back with the court on an ongoing basis. But don’t fall into the Bush administration’s mindset.  A president who presents the court with smart, modest legal arguments for upholding his power don’t have less power.  He probably will have more.  As Katyal and others argue, the court may be more willing to give the President what he wants when the request is presented in a more modest fashion.

Fourth, remember that Justice Kennedy, the swing vote on the current court, famously votes his politics.  My guess is he is likely to side more often with an administration he likes and trusts – and that he will have an affinity for fellow cosmopolitan Obama’s, at least on the foreign affairs and national security front.

I’m guessing, for all these reasons, that those expecting the Supreme Court to continue to act as a drag on the centralization of power in the presidency, as it generally has in the Bush years, are likely to be disappointed in the Age of Obama.

Get Yourself a Crate of Scalpels

On Marketplace Radio Will Wilkinson offers some advice to the president-elect:

Congratulations, Barack Obama! You’re the next President of the United States. Sadly, the government’s so broke that even new curtains for the Oval Office are beyond the bounds of fiscal responsibility. Thanks to the war, the Wall Street bailout, the lousy economy, and the drop in tax revenue, your big campaign plans just got a lot smaller.

Here’s my advice: First, you’ve got to get spending under control. Yes: Bring the troops home, and shrink the military. But there’s enormous waste in the non-defense budget, too, and you need to go after it. You said we need to cut spending with a scalpel, not a hatchet. Well, if you don’t want to leave your kids with a crushing tax burden, you better get yourself a crate of scalpels.

Second, drop the xenophobic claptrap. The stuff from the debates about “mortgaging our future” by “borrowing from the Chinese to pay the Saudis” has got to stop. We are not, and cannot be, a self-contained fortress city. It’s good that capital markets are international. It’s good that energy markets are international. It’s good for prosperity and it’s good for peace that we’re all in it together. Help save America’s economy by making it even more open to the goods and people of the world.

Third, get real on the “new energy economy.” You’ve been claiming that the government can simultaneously create millions of new jobs, spur growth-enhancing innovation, and save the Earth by politically picking winners among energy companies. It’s a beautiful dream. But in reality, it means nothing more than the greening of corporate welfare and an increase in energy prices. Our struggling economy can’t afford that.

You’ve got Congress on your side and the wind of public opinion at your back – which is exactly why you should take it slow. This election was exactly what you said it was: a referendum on the last eight years of George W. Bush and his coalition. The voters agreed it was time to throw the bums out. But if you overreach, you’ll be tomorrow’s bum. Remember how popular Newt Gingrich’s Contract for America was? Yeah. Me neither.

A Rebirth of Freedom?

Back in July Sen. Barack Obama promised to repeal any executive orders that “trample on liberty”:

Barack Obama told House Democrats on Tuesday that as president he would order his attorney general to scour White House executive orders and expunge any that “trample on liberty,” several lawmakers said… .

The Illinois senator “talked about how his attorney general is to review every executive order and immediately eliminate those that trample on liberty,” said Rep. Jerrold Nadler, D-N.Y.

Good stuff! Perhaps that could include reviewing whether the federal government had any authority to partially nationalize banks, a sweeping intervention not authorized by Congress in the $700 billion bailout bill. Under what authority did the president and the secretary of the treasury start purchasing equity in major corporations?

Cato’s legal scholars would be happy to work with the new administration to review and rescind executive orders, signing statements, memos, and other documents that grant excessive power to the executive branch or otherwise “trample on liberty.” Some of the Bush administration’s excesses in this regard were reviewed by Gene Healy and Tim Lynch in Power Surge: The Constitutional Record of George W. Bush.

But I hope the new president realizes that Bush isn’t the first president to issue executive orders that “trample on liberty.” It was President Bill Clinton’s aide, Paul Begala, who drooled at the notion of using executive orders to do what Congress wouldn’t go along with: “Stroke of the pen. Law of the land. Kinda cool.” For a look at some pre-Bush executive orders that might warrant elimination, Obama’s attorney general might consult “Executive Orders and National Emergencies: How Presidents Have Come to ‘Run the Country’ by Usurping Legislative Power,” published by Cato in 1999. There he can find information about Clinton orders that nationalized land, sought to reverse Supreme Court rulings, rewrote the rules of federalism, and waged war in Yugoslavia.

As Obama himself has said in recent days, channeling Frederick Douglass, “Power concedes nothing without a fight.” Many people are skeptical that a new president will make good on his pledge to constrain executive power. But if he’s committed to the rule of law and the separation of powers, we’re ready to help.

In Education, Dem Win Is a Win for Smaller Government

Nine years ago, only a crazy man would have written the headline above. The Democratic Party, a wholly owned subsidiary of the teachers unions, brought us the money sinkhole known as the Elementary and Secondary Education Act, the tuition-exploding Higher Education Act, and the crowned jewel of bureaucratic worthlessness and educational futility, the U.S. Department of Education.  In the meantime, the Republican Party fought to expel Washington from the classrooms where, like the out-of-control kid with the stink bombs who keeps everyone else from learning, it simply did not belong.

And then George W. Bush happened. Flinging around talk of “compassionate conservatism” and decrying the “soft bigotry of low expectations,” Bush, with the complicity of congressional Republicans more interested in legislative (read: political) victory than rational policy, gave us the No Child Left Behind Act. What did the law do? It forced all states to create math, reading, and science standards and tests, required detailed reporting, and then, to enable politicians to simultaneously claim both toughness and a love of local control, left it states to write their own standards, tests, and implement the law. Oh, and it authorized—and ultimately produced—big increases in federal education spending. In other words, it let politicians claim to be everything to all people, while massively increasing federal bureaucratic burdens and encouraging all states to set their standards as low as they could go. Not surprisingly, while we cannot with certainty attribute any specific results to NCLB, academic outcomes under it have been poor, with gains where there had previously been some slowing, and other scores just dropping.

So why the headline above? Because while president-elect Obama has been very clear that he wants to increase federal education spending yet again, he has also hinted that he would decrease NCLB’s rigidly bureaucratic requirements. In addition, while the teachers unions are a big threat if given federal power, they tend to like money without accountability, meaning that, yes, they’ll push the Dems to set the cash spigot on “deluge,” but they’ll also resist federal rules. Put simplistically, instead of Washington doing two terrible things, it will do only one.

Unfortunately, this will likely be just a short-term gain. In the long term, there is little doubt that Democratic control would lead to both profligate federal spending and more government meddling, though this time pushing progressive education ideas. But that is where the second and more critical component to resurrecting small government in education will hopefully come in: renewed Republican opposition to unconstitutional and educationally worthless federal education intrusion. If the GOP should have learned anything from its astonishing fall from grace and power during the Bush years, it’s that big government doesn’t work, and selling your soul to get it doesn’t get you re-elected. No prescription drug bill, $700 billion bailout, or No Child Left Behind Act, has kept the GOP in the Washington majority.

There is, unfortunately, no guarantee that Republicans will learn this lesson; a big fight is no doubt coming between small-government realists and those committed to the Dem-light days of Bob Michel and Richard Nixon. If they do get the message, however, education, where for so long the Republican Party was clear that the feds did not belong, would be the perfect place to start applying the painful lessons they have learned.