The Obama Administration, Fundamental Institutional Change, and the Elections of 2010 and 2012

Back in 2009 during the first year of the Obama Administration, I argued that the existing Constitution – not the original meaning of the Constitution, but the one that is actually enforced – places significant checks on fundamental institutional change, such as that adopted during the New Deal and the Great Society.  The most significant check was the midterm elections following a presidential election.  There was a limited amount that most administrations could accomplish in two years and, if the country opposed their changes, the midterms would put an end to it. The changes accomplished in those two years were unlikely to constitute fundamental institutional change.  Both the New Deal and the Great Society had more than a two year period before midterm elections (in 1936 and 1966) largely stopped their radical change .

The 2010 midterm elections ended the ability of the Obama Administration to pass fundamental institutional change.  In part due to the unpopularity of Obamacare, the Republicans picked up 63 votes in those elections, took the House, and prevented the Obama Administration from passing any more fundamental changes through legislation.

In my view, it is clear that the Obama Administration did not effect fundamental institutional change comparable to the New Deal or the Great Society in its first two years.  While Obamacare is important, as is Dodd Frank, it just does not rise to the level of the large number of radical laws passed during the earlier two periods.

For those who favor limited government, we can be happy for the results of the 2010 midterm elections and for the fact that Republicans maintained a significant majority in the House in the 2012 elections.

But while the Republicans may have prevented a truly disastrous outcome, the passage of Obamacare is still a significant one.  Thus, the question is whether Obamacare has passed enough of an electoral test to allow it to become a permanent part of our institutions?  I turn to this question in my next post.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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