“The Presidency Comes With Executive Power, Deal With It”: Obama’s Just Doing What He’s Empowered To Do
In his State of the Union address, President Barack Obama vowed to act on his own if Congress did not do its part. Republicans duly took the bait. “We don’t have a monarchy in this country,” said Representative Steve Scalise of Louisiana. “The abuse of power by the administration has only become more brazen,” said Senator Ted Cruz.
Obama has unsheathed the sword of executive power, and yet rather than use it to smite his foes, he seems intent on clipping hedges. He says he will raise the minimum wage for a few thousand employees of federal contractors, tinker with the pension system, trim red tape, cajole business leaders to fund pre-kindergarten education, and do something unspecified to help stop gun violence.
Obama begged Congress for help far more often than he vowed to go it alone. Obama’s significant acts of executive power—the Libya intervention, the refusal to defend DOMA before the Supreme Court, non-enforcement of the immigration law against certain groups, climate regulation, NSA surveillance, recess appointments, executive privilege, and so on—lie in the past.
So we have a paradox. In his first term, Obama humbly beseeched Congress for help and sang the virtues of bipartisanship while resorting to unilateral action whenever he needed to. Today, he announces his defiance of Congress yet seems uninterested in using his newly acknowledged executive powers to, for example, shut Guantanamo Bay or raise the debt ceiling on his own.
Be that as it may, it is worth understanding what is at stake in these debates. We all learned in school that the founders feared executive power and so gave policy-making authority to Congress. In fact, the founders feared a too-powerful Congress as well, and they sought to create a strong executive. But the idea that Congress makes law and the president executes it—and any deviation from this pattern is tyranny—is burned into our political culture.
This system of separation of powers was cumbersome from the start. The country did well in its first few decades probably because state governments led the way, and state government structure was far less rigid than federal structure, which finally collapsed with the Civil War. When the communications and transportation revolutions created national markets and new opportunities and threats in foreign relations, it was finally clear that the federal separation-of-powers system could not manage policy at a national level.
The problem was that Congress was an enormously clumsy institution. Its numerous members fiercely advanced their deeply parochial interests. Policies of great importance for one section of the country, or one group of people, could not be embodied in legislation unless logrolling could be arranged, which was slow, difficult, and vulnerable to corruption. As a public, deliberative body, Congress could not react swiftly to changing events, nor act secretly when secrecy was called for.
No one held a constitutional convention to replace the eighteenth-century constitution with a twentieth-century one. Instead, political elites acting through the party system adjusted the government structure on their own. Congress created gigantic regulatory agencies and tasked the president to lead them. Congress also acquiesced as presidents asserted authority over foreign policy. The Supreme Court initially balked at the legislative delegations but eventually was bullied into submission; it hardly ever objected to the president’s dominance over foreign affairs.
This was not a smooth process. The rise of executive power sometimes hurt important interests and always rubbed against the republican sensibilities that Americans inherited from the founders. From time to time, Congress reaped political benefits from thwarting the president. But today Congress reacts rather than leads. It investigates allegations of corruption in the executive branch. It holds hearings to torment executive officials. It certainly doesn’t give the executive the budget he always wants, or pass every new law that he believes that he needs. But existing laws and customs almost always give the president the power he needs to govern. And when they don’t, Congress will sooner or later give him the power he wants. Witness the Dodd-Frank Act and the Affordable Care Act—two massive expansions of executive power.
In monarchies, the official position was that the king made policy but everyone understood that his ministers did. In our system, the official story is that Congress makes policy and the president implements it—such is the inertia of history. But the reality is that the president both makes policy and implements it, subject to vague parameters set down by Congress and to its carping from the sidelines. Presidents can defy the official story and assert the reality if they want. That is what the George W. Bush administration did, to its eventual sorrow. In hindsight, the broad assertions of executive power by Bush administration lawyers in signing statements, executive orders, and secret memos were naïve. They described, with only some exaggeration, the actual workings of the government, but their account conflicted with the official narrative and thus played into the hands of critics, who could invoke tyranny, dictatorship, and that old standby, the “imperial presidency.”
Democratic presidents have been shrewder. Bill Clinton and Obama have been just as muscular in their use of executive power as Ronald Reagan and Bush, but they resisted the temptation to brandish the orb and scepter. Whereas Republican presidents cite their constitutional powers as often as they can, Democratic presidents avoid doing so except as a last resort, preferring instead to rely on statutes, torturing them when necessary to extract the needed interpretation. Thus did Obama’s lawyers claim that the military intervention in Libya did not violate the War Powers Act because the U.S. bombing campaign did not amount to “hostilities” (the word in the statute). A more honest legal theory—one that does not require such a strained interpretation of a word—is that the War Powers Act infringes on the president’s military powers, but a theory like that would have provoked howls of protest.
In most cases, lawyers do not need to resort to such measures because Congress has already granted authority. The president’s power to raise the minimum wage comes from the Federal Property and Administrative Services Act of 1949, which, in typically broad language, permits the president to set contract terms with federal contractors so as to promote “efficiency.” Far from being a bold assertion of executive power, this is the type of humdrum presidential action that takes place every day.
Congress gave the president the power to determine contract terms because Congress did not want to—practically speaking could not—negotiate those terms itself every time the U.S. government entered a contract. This principle explains why Congress gives the executive branch enormous discretion to determine health, education, environmental, and financial policy. Congress directed the financial regulators to implement the Volcker Rule, but it would be entirely up to those regulators to make the rule meaningful or toothless. Nor can Congress block Obama’s decision to effectively implement the Dream Act—which was not passed by Congress—by not enforcing immigration laws against those who would have benefited from the act.
Meanwhile, the founders’ anxieties about executive tyranny have proven erroneous. The president is kept in check by elections, the party system, the press, popular opinion, courts, a political culture that is deeply suspicious of his motives, term limits, and the sheer vastness of the bureaucracy which he can only barely control. He does not always do the right thing, of course, but presidents generally govern from the middle of the political spectrum.
Obama’s assertion of unilateral executive authority is just routine stuff. He follows in the footsteps of his predecessors on a path set out by Congress. And well should he. If you want a functioning government—one that protects citizens from criminals, terrorists, the climatic effects of greenhouse gas emissions, poor health, financial manias, and the like—then you want a government led by the president.
By: Eric Posner, The New Republic, February 3, 2014
Though millions of Americans received Christmas gifts Wednesday, none got the one thing just about everybody wanted. No, not a new iPhone: A new Congress.
Two-thirds of Americans in a CNN poll released Thursday said the current Congress was the worst one in their lifetimes. And it wasn’t just one party or demographic who felt that way.
“That sentiment exists among all demographic and political subgroups. Men, women, rich, poor, young, old — all think this year’s Congress has been the worst they can remember,” CNN Polling Director Keating Holland said.
Three cheers for bipartisanship!
Meanwhile, three-fourths of respondents said lawmakers had “done nothing to address the country’s problems” through the first year of the 113th Congress. That gets at what’s primarily to blame for Congress’ horrible image: Lawmakers didn’t do much of anything this year, and the few things they did do were spectacularly infuriating. Heck, one of Congress’ most notable actions was failing to pass a bill to fund the government and, as a result, shuttering Washington for two weeks.
It’s not just a skewed, subjective view of congressional inaction either. The 113th Congress is statistically on track to be one of the least productive in history.
The 113th Congress passed only 66 laws in its first year, according to GovTrack. That was the lowest tally in four decades, or as far back as GovTrack has reliable data. Worse, only 58 of those bills became law, and many of them did nothing more than name post offices.
Meanwhile, many enormously popular bills fizzled. Nine in ten Americans supported tougher background checks for gun purchases, though Congress spiked gun control legislation. Two-thirds of Americans supported the Senate’s bipartisan immigration bill, but the House refused to take it up this year.
So yes, people aren’t too thrilled with how Congress has been functioning, a sentiment that’s been made clear throughout the year. Polls have found Congress less popular than dog turds and cockroaches, and in November, Congress’ approval rating fell to an all-time low of nine percent, according to Gallup.
Don’t count on that trend turning around any time soon either. Sure, Congress just passed a bipartisan budget agreement before fleeing Washington for the holidays, but that compromise was relatively tiny, and there are other major showdowns looming, including yet another one over the debt ceiling. Oh, and 2014 is a midterm election year, which should make lawmakers even more tepid toward major action.
In other words, the 113th Congress is already one of the most unpopular and least-productive in history, and it’s probably only going to get worse.
By: Jon Terbush, The Week, December 26, 2013
“A Warped Prism”: Sequestration And How The “Liberal Media” Keeps Blaming Obama For Republican Behavior
Reading what has now become a cavalcade of Beltway pundits, led by New York Times writers, denouncing President Obama for failing to avoid the drastic budget sequestration, and berating him for not “leading” by getting Republicans to abandon their chronic intransigence, I keep thinking back to the earliest days of Obama’s presidency when the press concocted new rules regarding bipartisanship.
Specifically, I recall a question NBC’s Chuck Todd asked at a February 2009 press briefing as the president’s emergency stimulus bill was being crafted in Congress. With the country still reeling from the 2008 financial collapse, and the economy in desperate need of an immediate stimulus shot in the arm, Todd asked if Obama would consider vetoing his own party’s stimulus bill if it passed Congress without Republican support.
Todd wanted to know if Obama would hold off implementing urgent stimulus spending in order to a pass different piece of legislation, one that more Republicans liked and would vote for, because that way it would be considered more bipartisan.
I mention that curious Todd query because only when you understand the warped prism through which so much of the Washington, D.C. press corps now views the issue of bipartisanship does the current blame-Obama punditry regarding sequestration begins to make sense, even remotely.
Here’s what the prism looks like, and here’s what it’s looked like for the last four years: Blame Obama for Republican obstinacy. (Or, as a backup: Both sides are to blame!)
And remember, most of the pundits currently taking misguided aim at Obama on sequestration are part of the supposedly “liberal media” cabal, the one that conservatives insist protect Obama at any cost.
As key observers have noted in recent days, the facts on sequestration are not in dispute: Obama has made repeated offers to meet Republicans in the middle with a proposed deficit reduction plan built around a mix of spending cuts, reform to entitlement programs, and revenue increases. Republicans have countered by saying they will not agree to any deal that includes revenue increases. In terms of “leading,” Obama has done everything in his power to try to fashion a deal with Republicans. In response, the absolutist GOP has refused to move off its starting point; it’s refused to move at all. (Hint: They wanted sequestration to occur.)
So, because Obama, who just won an electoral landslide re-election, wasn’t willing to concede to Republicans everything they wanted, the sequester impasse was reached and $85 billion worth of across-the-board spending cuts went into effect. From those facts, too many pundits have rushed in to blame Obama. Why him? Because he hasn’t been able to change Republican behavior. He wasn’t able to get them to agree to a bipartisan solution.
Question: If you’re an obstructionist Republican and the press blames Obama for your actions, why would you ever change your obstructionist ways? Answer: You wouldn’t. And they haven’t.
Remember, the recently concluded confirmation battle over Chuck Hagel becoming Secretary of Defense wasn’t just about the Republicans’ unprecedented opposition to the cabinet choice. It was also about the press’ ongoing refusal to acknowledge the GOP’s radical obstructionism. A refusal that simply encourages more of the same destructive behavior.
Not surprisingly that theme now runs through the sequestration coverage, as pundits and commentators do their best to downplay those obstructionist tactics in order to clear a way at their real rhetorical target: Obama. (Notable exceptions are appreciated.)
My sense of déjà vu on the sequester media mess is especially intense. I noticed this same trend 49 months ago:
If Republicans simply do not want to cooperate in any meaningful way with Democrats, is there anything Obama can do to change that? No, not really. But according to the press, Obama — and Obama alone — is supposed to change that mindset.
For four years this nonsensical narrative about how it’s up to Obama to change the GOP’s conduct has been promoted and celebrated inside Beltway newsrooms. And now all the savvy pundits agree: Republicans’ obstinate ways created the sequestration showdown, so that means it’s Obama’s fault. By failing to lead, by failing to change Republican behavior, Obama must shoulder the blame.
As noted though, the agreed-upon sequester facts are not in dispute. So in order to blame Obama for Republican obstructionism, pundits have been inserting boulder-sized caveats to their illogical writing that ultimately points the finger at the president [emphasis added]:
“And, of course, it is true that much of the responsibility for our perpetual crisis can be laid at the feet of a pigheaded Republican Party, cowed by its angry, antispending, antitaxing, anti-Obama base.” (Bill Keller, New York Times)
“We have a political system that is the equivalent of a drunk driver. The primary culprits are the House Republicans.” (David Ignatius, Washington Post)
“The great debt-ceiling crisis of 2011 was initiated entirely by the Republicans refusing to do anything.” (Howard Kurtz, The Daily Beast)
“Most Republicans in Congress have been utterly irresponsible in this debate.” (Washington Post editorial).
But never mind all that. It’s Obama’s fault that Republicans are the “pigheaded” “culprits” who “initiated entirely” the “utterly irresponsible” debate over sequestration.
By: Eric Boehlert, Media Matters for America, May 5, 2013
When the Maine State House voted 111-33 this week to call for a constitutional amendment to overturn the US Supreme Court’s ruling in Citizens United v. Federal Election Commission, the support for this bold gesture was notably bipartisan. Twenty-five Republicans joined four independents and all eighty-two Democrats to back the call.
Similarly, when the Maine State Senate voted 25-9 for the resolution, five Republicans joined with nineteen Democrats and independent Senator Richard Woodbury to “call upon each Member of the Maine Congressional Delegation to actively support and promote in Congress an amendment to the United States Constitution on campaign finance.”
What happened in Maine this week was a big deal for several reasons:
1. Maine became the thirteenth state to urge Congress to develop an amendment to address the money-in-politics crisis that is unfolding as a result of Supreme Court rulings that that have effectively struck down campaign-finance regulations and ushered in a new era of unlimited spending by wealthy individuals and corporate interests. Maine joins West Virginia, Colorado, Montana, New Jersey, Connecticut, Massachusetts, California, Rhode Island, Maryland, Vermont, New Mexico and Hawaii in calling for an amendment. Washington, DC, has also backed the drive.
2. The swift action by both houses of the Maine legislature, coming less than a month after West Virginia urged Congress to act, confirms the momentum that is building for the movement, which has been backed by almost 500 communities nationwide. Though media coverage has been scant, it is rare in recent history for a grassroots movement to amend the constitution to have attracted so much official support at the municipal, county and state levels nationwide.
3. As in a number of other states, the significant level of bipartisan support in Maine provides a reminder that this movement is attracting support from across the partisan and ideological spectrum.
That final point merits particular attention.
Because of the often narrow and simplistic way in which political debates are covered in the United States—if they are covered at all—there is a tendency to think that all Democrats are reformers, while all Republicans are backers of big money in politics. That’s not the case. Polling has consistently shown that Republicans support for restrictions on corporate spending in elections very nearly parallels that of Democrats. And, while there are too many national Democrats who buy into big-money equations, there are Republicans who have begun to raise the right objections—and point to the right answers. Notably, Congressman Walter Jones Jr., a very conservative Republican congressman from North Carolina, is a cosponsor—along with Kentucky Democrat John Yarmuth—of a constitutional amendment proposal that would overturn key provisions of the Citizens United decision and establish that campaign contributions can be regulated by Congress and state legislatures.
Bipartisan support for reform is more evident in the states. State legislators are active at the grassroots, knocking on doors and meeting constituents face to face. They recognize the deep frustration with a political process that seems to have spun out of control, and they reject the premise that corporations and wealthy individuals have a constitutional right to buy elections.
“There has to be a way to secure First Amendment rights to speech and still control the amount of dollars spent on campaigns,” says Maine state Senator Edward Youngblood, a Republican who went so far as to appear at rallies calling for a constitutional amendment. “It should be plain to everyone after the election we’ve just had, which broke records for spending, that the system isn’t getting better.”
Youngblood is right, and the group that organized support for reform in his state, Maine Citizens for Clean Elections, wisely reached out to Democrats, Republicans, independents and third-party backers in pursuit of a “multi-partisan” coalition.
The approach has excited national groups such as Public Citizen’s Democracy Is for People Campaign, Move to Amend and Free Speech for People. Indeed, Free Speech for People’s Peter Schurman declared, “This terrific bi-partisan vote is a huge win, not only for Maine, but for all Americans. Republicans, independents, and Democrats alike are clamoring for a constitutional amendment to reverse Citizens United and bring back real democracy. We’re thrilled that Maine is now helping lead the way forward.”
He’s right, especially when it comes to the emphasis on drawing support from all parties for a reform that seeks to restore genuine competition based on ideas—as opposed to a shouting match between billionaires.
By: John Nichols, The Nation, May 1, 2013