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.

What Next for the Third Branch?

The new president will have a chance to significantly reshape the judiciary. President Bush managed to confirm only 321 judges—about 50 fewer than Presidents Reagan or Clinton—so there are plenty of vacancies to fill. Moreover, Congress has not created any new circuit court positions since 1991, while federal appellate filings increased by about 50 percent since that time; only four percent more district judges have been created during the same period, while filings to those courts increased by about 25 percent. We can expect, perhaps even in the “first 100 days,” a new judgeship bill that will add to the vacancies President-elect Obama will have to fill. 56 percent of federal judges are now Republican appointees, and the Ninth Circuit (based in San Francisco and sprawling across nine western states) is the only federal appeals court with a majority of judges appointed by Democratic presidents. Obama will be able to change the former statistic and swing control of all but three circuits (of the thirteen) to Democratic appointees. And then, of course, we have the two or three Supreme Court nominations the new president will probably have in the next four years: Justices Stevens, Ginsburg, and Souter are each likely to be off the Court by 2012. It is not for nothing that pundits consider judges to be one of the most undervalued policy areas in this long, strange campaign.