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I love a good real estate analogy, so naturally I had to admire the way Erick Erickson, the conservative blogger, recently described the last-minute flurry of actions emanating from the Obama White House. “Obama and John Kerry,” Erickson tweeted, “are like tenants who trash a place as they are being evicted.”
Except, in this case, the analogy is a few degrees off. The president isn’t really trashing anything.
It’s more like he’s hurriedly adding the bold, modernist touches his landlord always resisted — repainting walls, recessing lights, tearing up carpets and restaining floors — in hopes that the guy who’s moving in next won’t have the time or tenacity required to undo them.
Does Obama have the right in these waning days to govern like there’s no tomorrow (because, of course, there isn’t)? Does he retain the authority to rebuke Israel and smack the Russians, to protect vast expanses of public land while filling out scores of vacant seats on government commissions?
Of course he does. He’s still the president, after all.
Should he really be doing all these things on his way out the door? That seems to me a more complicated question.
I understand why a lot of people want the answer to be yes. While I don’t always agree with Obama or his party, I happen to think he’s right about the seriousness of Russian hacking and the cost of Israeli intransigence in the Middle East. These are issues — climate change is another — where Donald Trump would be well served to listen to his predecessor before firing off tweets as if he were riffing on “The Apprentice.”
I understand, too, that Obama actually boasts higher approval ratings than the incoming president (who, just by the way, kneels before any kind of approval rating, whether from Nielsen or Gallup, as if he were an Aztec and it were the sun). This is highly unusual during transitions, when the public generally embraces the new and unknown over the old and tattered, and I guess it could lend some legitimacy to Obama’s last-minute actions.
And, as my friend Michael Shear pointed out in his deft New York Times piece on the subject last weekend, there’s plenty of modern precedent for outgoing administrations establishing new policy or settling old debts. Bill Clinton pardoned everyone but the Manson gang; George W. Bush negotiated multiyear troop withdrawals. Obama is hardly the first president to feel liberated by obsolescence.
But the breadth of Obama’s farewell agenda goes beyond that of his predecessors, and in any event, he has never seemed to be a president guided by history as much as by his own sense of principle. In this case, some of those principles seem hard to reconcile.
Consider that Obama spent much of this past year insisting that his final Supreme Court nominee, Merrick Garland, deserved a vote in the Senate — something Senate Republicans refused to give him, because they were determined to let Obama’s successor fill the vacancy instead.
Obama argued, essentially, that even if the Senate technically had the right to deny his nominee a fair hearing, it had a larger duty to respect the constitutional process. The people had chosen him to lead the executive branch, and Congress had an obligation to honor that choice right up until the moment the electorate made some other decision.
You know what? He was right.
But the same principle applies now. Sure, Obama has the authority, technically speaking, to govern as he sees fit right up until the day the moving vans pull away. But the people have spoken, and they’ve chosen, as the HR people say, to go in a different direction. I get how appalling that is to the White House, but Obama ought to respect it nonetheless.
(And before you start with me about the sanctity of the popular vote, yes, I know, the entirety of New York and California voted for the other candidate, but Trump swept the vast majority of the country’s land mass and the bulk of its most populous states, so if it were me, I’d save that particular argument for another election.)
We don’t have these transition periods because we want the outgoing president to set all kinds of new policy in the time he has left, with no accountability to voters. We have extended transitions so that someone can remain at the helm while the new administration gets up to speed on policy and scours the ranks of Goldman Sachs for more high-level hires.
Obama is a pretty deep thinker about the structures of government, so surely he knows that. My guess, judging from the conversations I’ve had with him over the years, is that he has to be a little conflicted about this last, desperate spate of policymaking. I’m guessing he’d rather not do it this way, but he feels some moral imperative to protect his legacy — and, yes, the country — from the worst of what Trump might do in his rush to reverse everything that came before.
But as Obama himself might put it, were he merely a spectator watching this unfold, the underlying structures of the republic are easy to safeguard when there’s no tangible cost. It’s much harder to respect the will of the voters when the human consequences seem, at least to you, potentially calamitous.
That’s precisely when you have to do it. That’s when it matters most.
Kerry should not have given his speech denouncing Israel. Obama should not be filling jobs at the last hour. It’s tempting to exploit the time you have left for maximum impact, but it’s also self-serving, and it’s bound to be fleeting.
Because if there’s one thing Obama should have learned from his futile strategy of governing by “phone and pen” — if there’s one thing that should be clear as Republicans prepare to obliterate much of his second term in a matter of hours — it’s that you can’t build anything lasting by executive fiat. Sooner or later, whatever you achieve with the flourish of a single pen is erased with about the same casual effort.
What history will most remember, unfortunately, is that you refused to stand down when the verdict was in. That’s no way for an otherwise graceful president to go out.