Canada-United States law Institute distinguished lecturer at the University Of Western Ontario Faculty Of Law: March 23, 2009: the Obama opportunity for Canada.

• Author: Sands, Christopher
• Position: North American Dispute Settlement

I want to thank all of you for coming out. I know there are a lot of other things competing for your time at the end of the semester, so I am grateful for your attendance. Also, I have to thank all of the organizers, who managed to get me out here from Detroit. I crossed the Blue Water Bridge last night at 1:30 a.m., and I still managed to make it. That is a terrible time to cross, by the way. The guard was bored and had nothing else to do. I have the misfortune, or fortune, of having traveled to places like Pakistan and Iraq, which is all in my passport. I had my passport ready for him, and we spent too long discussing why a Canada expert is traveling to such suspicious places. So, if you are at least willing to suspend your disbelief more than him, you will be a good audience for me--a better one than I had last night.

I wanted to talk a little bit about Obama as an opportunity for Canada, because the theme was suggested to me by the political coverage in Canada of the President's visit to Ottawa on February 19, 2009. (1)

Prior to the election, Peggy Joseph of Chicago (2) was so excited that Barack Obama had been nominated, and subsequently elected, that when asked why the moment was so memorable, she replied, "I never thought this day would ever happen. I won't have to work. I won't have to worry about putting gas in my car. I won't have to worry about paying my mortgage. If I help him, he will help me." (3)

I think one of the challenges for the President is that expectations are a bit ahead of what he may be able to do. He is trying very hard to damp down those expectations, which you know if you have seen his public remarks. (4) However, sometimes people hope for him to do so much that they raise expectations a bit beyond what he might be able to deliver.

After the President's visit to Ottawa, it was striking that the coverage in Canada veered towards the sort of relationship you might imagine between kings and monarchs. (5) Some of the coverage suggested Canada's problems were because the President so clearly likes Canadians and enjoyed his visit to Ottawa. If the "czar" only knew; now the "czar" knows that Canadians are wonderful people. So, no there is no need to talk about getting rid of the North American Free Trade Agreement (NAFTA), because all the trade disputes will be magically resolved.

I encourage you to read carefully what the President actually did say, (6) because a careful reading of his remarks reveals something slightly different. He invited Canadians to participate in a dialogue on how to move forward on a range of issues, including border problems, (7) Afghanistan, (8) energy and climate change, (9) how the stimulus plan may contain protectionist elements, (10) and what we might do with the auto sector, (11) which is obviously in trouble. (12) That is not just anything; it is a presidential sanction of Canadian participation in a debate that will be very important in the coming months and weeks. However, it is also not the solution to all of our problems. It is like the person who gets admitted to college and thinks, "Now this is great, I will have a college degree and I will be on easy street." Admission to the game is only part of the challenge; the next challenge is all the work ahead. So what I would like to focus on is what this opportunity means for Canada, and how you can participate and take advantage of it.

The American political process, as you are probably aware, is based on competition. (13) It is based on division of power; a distribution of power that tries to make sure that there is not concentration in any one group, or one individual's hands. (14) It is by nature difficult to get things done in the United States. This is in contrast to your Prime Minister, who in recent years has had a concentration of power. To a large extent the Prime Minister is able to intimidate his Cabinet, control his own party caucus, and even push around Parliament. (15) Now, with a minority government, (16) Canada's third in a row, (17) it may not seem like the Prime Minister is as powerful a figure as when Jean Chretien (18) was Prime Minister, or even Brian Mulroney. (19) Nevertheless, the Prime Minister has a great deal of power in the Canadian system, and the President, while powerful, has somewhat less. (20)

It is easy to confuse the role of head of government and the head of state. In Canada, the head of government is the Prime Minister, (21) but the head of state is the Queen or the Governor General, which is a ceremonial role. (22) President Barack Obama performs the ceremonial role of President of the United States extremely well: he is charismatic, well-spoken, sharp, smart, and better-looking than me. That is why we put him on the poster for this event, not me. He is able to speak for the United States in a compelling way. That is different than the role of running the government, which you saw the President undertake when he went to Congress to speak to them about the economy and the stimulus plan, in addition to what he wanted for the upcoming budget. (23) That is the hard work of government. Inevitably, the hard work of government is less successful, less dramatic, and, in the United States, it involves convincing Congress to go your way.

For people who are Washington insiders, the challenge of the stimulus was not that we had a big problem. It was who was going to be in charge of fixing it. (24) The Congress had been debating the stimulus since the Bush administration, and the battle lines were drawn between Republicans and Democrats. (25) As a result, Republicans were able to forge a remarkable degree of party unity, especially in the House, rejecting entirely the President's overtures to try to bring them on board in support of the stimulus. (26)

That is a warning sign for Washington insiders. Going back to the founding of the republic, we have had alternation between periods of executive dominance, which we sometimes think of as the "imperial presidency," and periods of legislative dominance, where the Congress is assertive and sets the agenda. (27) We may well be in the beginning of a period of congressional dominance. After all, the stimulus bill was written and passed by Congress. (28) The President supported it but did not have a lot of time to take charge of it. Why not? Well, first, because of the urgency of the moment. Second, because the President has to run an administration comprised of some 3,302 individuals who have to be Senate-confirmed. (29) By the time the stimulus plan came forward into the Congress, the President had not yet confirmed his Cabinet, (30) which meant that all political appointees below the Cabinet level were out of place because the Administration was still in the process of getting names through. (31)

When high profile Cabinet nominees blew up, like Bill Richardson (32) or Judd Gregg, (33) the administration was sent into a scramble to make sure everyone who went forward was vetted to the highest degree to ensure that there were not anymore flame-outs, nor a need to put political capital on the table to rescue nominees when others might be available who would pass. (34) This slowed down the process of getting the Government in place. As a result, it gave President Obama a terrible disadvantage in dealing with Congress, especially when Congress was full of veterans who had their staffs in place and ready to go from day one. Congress saw the beginning of the 111th Congress and the 44th Presidency as an opportunity to present items that former President George W. Bush would not sign to Obama, a co-partisan who presumably would sign them. (35) That first battle with getting nominees appointed indicated that the President was unable to take control of the agenda, and when big issues blew up, as we saw with the AIG bailout (36) and just this past week with the embarrassment of bonuses paid to AIG executives, (37) the President and his team were pointing fingers at one another. (38) Did Tim Geithner know about this? Did Congress actually amend the legislation to permit the paying of the bonuses and then later think better of it? Some congressmen have admitted that they did not read most of the seven thousand pages in the stimulus plan, (39) which is not very reassuring to markets and to other people.

Now, as the President fills his administration, we can expect to see him get a second wind and do more to try to take charge of Washington. But we have already had the beginning of what will likely be a series of bruising battles on legislation, (40) and Congress will shirk to no one, including this President, in trying to shape that agenda.

Now, you might say that this is all very nice, but we did not want to have an inside the beltway talk tonight; why do we care? The reason that Canadians care about the battle between the President and Congress is that your best friend is an administration that responds to foreign interests, respects treaties negotiated with past administrations, and has an ability to engage with Canadian officials. The Congress, on the other hand, is by design parochial. (41) It is an institution that represents local interests that vote for its members; and that means no Canadians. (42) This is always difficult for Canadians. (43) For example, if we look back to the cancellation of the 1854 Reciprocity Treaty, (44) there was a congressional initiative to cancel the treaty, hoping to punish Canadians for their support of the South during the Civil War--or at least that is what the United States thought. (45) We can also look at the Smoot Hawley Tariff, (46) which caused no end of trouble for the Canadians and for the Americans as we tried to recover from the Great Depression. (47)

Congress will always follow its voters, but voters in the United States have a relatively limited appreciation for just how much their prosperity depends on Canadians, Canadian export markets, and Canadian interactions. (48) It is no...