Cliff Dweller

It’s no accident that Presidents get lots of attention. They have lots of power. But the media’s natural obsession with everything the “leader of the free world” says and does helps feed a myth of presidential omnipotence. In the Obama years, liberals in particular have often criticized the President for failing to transcend political realities. Why wasn’t his 2009 stimulus bigger? Why didn’t his health care reforms include a public option? Why didn’t he pass legislation to restrict carbon pollution? The prosaic answers–he didn’t have the votes in Congress, and he didn’t have a magic wand–seem unsatisfying to some. Surely the U.S. would have stronger gun restrictions if Obama really wanted them, if he had just talked about them and insisted on them and crusaded for them.

But as the dysfunctional drama over the fiscal cliff proved once again, congressional elections have consequences too. Obama has all kinds of powers, from the bully pulpit to the veto, but House Speaker John Boehner has the power of the gavel, and Senate minority leader Mitch McConnell has the power of the filibuster. Obama doesn’t like Republican obstruction any more than his liberal critics do, but he recognizes it as a feature of the political landscape he can’t just wish away. Legislation that cannot pass Congress cannot advance his policy agenda.

So when it came to the fiscal cliff and the future of taxing and spending, neither side could get everything it wanted. Obama needed Republican votes to avoid a government-inflicted wound to a frail economy. The last-minute deal that prevented a dive into severe austerity reveals what he really cares about: protecting the recovery and the vulnerable more than reducing the deficit or soaking the rich. With the economy finally showing signs of strength after four years of painfully slow progress, that made a lot of sense–even though many Republicans hated it, while many liberals howled that he had given too much to the GOP.

The good news for the White House was that in the end, Obama got most of what he wanted on taxes, though he did give up his goal of raising marginal tax rates on income above $250,000 to Clinton-era levels. Instead he agreed to thresholds of $400,000 for individuals and $450,000 for families, along with an extension of tax credits for child care, tuition, the wind industry and the working poor. The President also managed to avoid the vast majority of the spending cuts that Republicans had demanded in return for their votes on any cliff deal. Medicare and Medicaid were kept out of harm’s way. And the so-called sequester–a collection of draconian spending cuts that were due to take effect Jan. 1–was delayed for at least 60 days.

But the result was a suboptimal deal that pushed the hardest decisions down the road and set the stage for an even more harrowing standoff between the two sides in the next Congress. The government runs out of borrowing authority sometime in mid-February, and Republicans say that unless Obama meets their demands for nonmilitary spending cuts that didn’t make it into the cliff deal, they won’t raise the debt limit. The U.S. would be forced to default on its obligations, and a worldwide economic panic could ensue. Happy new year!

This will be the ultimate test of the balance of power in Washington–and the limits of minority-party hostage taking. Reasonable people can disagree on whether filibusters should be rare or routine, but the idea that the President can’t borrow to pay for congressionally authorized spending without new congressional legislation is a recipe for disaster. As the saying goes, the Constitution is not a suicide pact, and the 14th Amendment states that the debt “shall not be questioned.”

After 2011’s battle over lifting the debt ceiling nearly destroyed the recovery, Obama vowed not to negotiate with Congress about it again. But Boehner made his case for House Republicans to vote for the cliff deal in part by pledging that Obama would be forced to accept dramatic cuts to entitlement programs like Social Security, Medicare and Medicaid in the next round of talks. That is something Obama has suggested to Democrats he would not do without additional revenue. Which means another round of negotiations is about to begin. We are going to be living at the cliff edge for months.

The War Between the Branches

Obama’s second term is shaping up to be full of nonstop, overt partisan warfare, in part because the U.S. has seen exactly that for the past four years. Aided by Senate rules that require 60 votes to do just about anything, Republicans have slow-walked Obama’s picks for judgeships and other jobs, scuttling a few controversial nominees–GOP critics forced Susan Rice to withdraw from consideration for Secretary of State before the newly re-elected President could even nominate her–while leaving scores of uncontroversial ones in limbo.

Of course, Democrats have practiced this brand of obstructionism in the past, and Republicans did not stand in the way of Obama’s two Supreme Court appointments. But congressional scholars say the modern GOP has taken the confirmation process to new extremes. And they can’t recall an example of a Senate minority flatly refusing to confirm anyone for a job created by congressional statute, as Republicans did with the head of the new Consumer Financial Protection Bureau last year. “That’s a new one,” says Sarah Binder, a political-science professor at George Washington University. “Things got gummed up in the Bush years too, but there’s been much more aggressive pushback in the Obama years.”

To the National Rifle Association’s delight, the Senate has hobbled the Bureau of Alcohol, Tobacco, Firearms and Explosives by failing to confirm a director since 2006, but Obama hasn’t made a recess appointment. Even White House officials admit that their clout is limited. “The President’s view of his own power is a constrained one,” says White House counsel Kathryn Ruemmler. “Many of his nominees have languished, but he’s only recessed the ones that were critical to keep agencies functioning.”

Still, Obama has pushed back against the pushback. He unilaterally installed former Ohio attorney general Richard Cordray at the Consumer Financial Protection Bureau, a move now being challenged in court. He also made recess appointments of three nominees to the National Labor Relations Board after Republican intransigence left the board without a quorum. Sometimes, though, obstructionism works: when Republicans refused to allow an up-and-down vote on one of Obama’s nominees to the all-important Federal Reserve–Senator Richard Shelby called the Nobel-laureate economist unqualified–the President eventually chose new nominees, including a Republican.

It’s true that Obama, a former constitutional-law professor, is less dogmatic about Executive prerogatives than George W. Bush, whose separation-of-powers doctrine often seemed to boil down to Because I Said So. But Obama has flexed his muscles at times. When House Republicans attached language to an appropriations bill designed to stop Obama’s top science adviser from talking to Chinese officials about climate change, the White House told Congress it would ignore the restriction because it interfered with the President’s ability to conduct foreign affairs. The White House also invoked Executive privilege to avoid a subpoena in the Fast and Furious gun-tracking investigation, prompting Republican accusations of a cover-up.

As Capitol Hill has become a black hole for policy, Obama has stretched his powers in creative ways. In the fall of 2011, after Republicans killed his jobs bill, he launched a We Can’t Wait initiative to advance pieces of his agenda through Executive action, from streamlined environmental reviews that should accelerate transit and renewable-energy projects to orders helping veterans find jobs and students pay back their loans. His Administration also bypassed Congress to engineer a backdoor revision of the No Child Left Behind education law, granting waivers to 34 states, plus the District of Columbia, that have agreed to adopt reforms such as tougher standards and teacher evaluations based on student progress.

Obama has also extended the steady post–World War II consolidation of presidential power over national security. The U.S. has used drones to patrol the skies in Pakistan, Yemen and Somalia without congressional declarations of war. Obama even claimed in a report to Congress that U.S. military operations in Libya did not qualify as “hostilities” under the War Powers Resolution. He has continued Bush’s muscular approach to surveillance, detention and military justice for suspected terrorists; he appended a signing statement to a 2012 defense bill asserting presidential prerogatives in those areas, even though as a Senator he criticized Bush for using signing statements. There has been barely a peep of protest from Capitol Hill.

The Gathering Storm

The constitution doesn’t say anything about a filibuster, but the founders did envision the Senate as a go-slow legislative body, a saucer to cool the passions of the House, as George Washington reportedly said. Senate majority leader Harry Reid is pushing for reforms that would require Senators who object to something to actually take to the floor and keep talking, as Jimmy Stewart did in Mr. Smith Goes to Washington–but most Republicans have threatened to retaliate with parliamentary maneuvers that could shut down the Senate. The coming fight over the filibuster is likely to be an early flash point of Obama’s second term.

Meanwhile, the Administration will implement its historic health reforms and financial regulations while congressional Republicans try to starve the funding that gives the new laws their muscle. Obama’s EPA could start regulating carbon pollution; the House GOP could launch investigations of Obama priorities like high-speed rail or clean-energy subsidies while boosting its scrutiny of controversies like Fast and Furious and the terrorist attack in Benghazi, Libya. There is always a chance that the two parties will reach a consensus on new legislation, perhaps a comprehensive or even a not-so-comprehensive immigration bill. Sometime this year, when both parties clash again, a deal could be struck that eliminates additional deductions, cuts entitlements some and reduces defense spending, though by less than what Obama probably wants.

The checks and balances in our political system were designed to encourage consensus instead of partisan warfare; if Senate Republicans had decided to work with Obama in his first term instead of fighting him, they could have helped shape Obamacare and other Democratic legislation. At the time, McConnell famously explained that his top priority was denying Obama a second term, but now he’ll need a new top priority.

With the parties as polarized as ever, the balance of power in Washington will drive the narrative of Obama’s second term, just as it did the first. The President will continue to have trouble moving his agenda through Congress, so he’ll keep seeking other ways to get things done. And the outcomes of checks-and-balances fights over the filibuster, the debt limit and the confirmation process could decide how effective America’s central government will be–long after Obama leaves office.