“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
“Obama’s Best State Of The Union Speech”: Pretty Sure The Last Three Years Of His Presidency Won’t Be Boring
With a strong, optimistic beginning and an unforgettable ending, that may have been President Obama’s best State of the Union speech. Apparently none of the commentators who have been saying his presidency is on its last legs bothered to let him know.
He opened with a portrait of the country – not an America gripped by crisis or mired in despondency, but a sunny place where unemployment is falling, school test scores are rising, housing prices are recovering, deficits are shrinking and manufacturing jobs are coming home. “I believe this can be a breakthrough year for America,” Obama said. The big problem, he said, was the performance of the people sitting before him in the House chamber: “We are not doing right by the American people.” He went on to excoriate Congress for its insistence on trench warfare, challenged his opponents to “focus on creating new jobs, not creating new crises” and pledged that if Republicans won’t work with him, he will take executive action where possible.
But the president’s tone throughout the speech was buoyant, not sour. His defense of the Affordable Care Act was an observation that House Republicans’ first 40 useless votes to repeal the law really should suffice. Even when he bludgeoned the GOP over long-term unemployment benefits or the minimum wage, he did it with a smile. His argument for equal pay and family leave? “It’s time to do away with workplace policies that belong in a ‘Mad Men’ episode.” His call for raising the federal minimum wage to $10.10? “Join the rest of the country. Say yes. Give America a raise.”
There was much that Obama did not say. I heard only one vague, substance-free sentence about domestic surveillance. There was no real discussion of foreign policy until the speech neared the one-hour mark, and the really tough problems where U.S. ideals and interests are out of alignment – Egypt, for example – were not grappled with. The specific executive actions he has vowed to take are significant but not earth-shaking – with one exception: Obama promised to use his authority to regulate carbon emissions. If he is as serious about tackling climate change as he said tonight, this may turn out to be one of the most important speeches of his presidency.
The end of the speech, a tribute to wounded Sgt. 1st Class Cory Remsburg, was an indelible moment. To end with such a powerful story of bravery and resilience gave emotional depth to the overall theme of the speech: America is back. I don’t know how much of his agenda Obama will achieve. But I’m pretty sure the last three years of his presidency won’t be boring.
By: Eugene Robinson, Opinion Writer, The Washington Post, January 29, 2014
“Steve King, Confused And Wrong Again”: A Wage Hike Isn’t A ‘Constitutional Violation’
The White House probably didn’t expect congressional Republicans to celebrate President Obama’s new policy raising the minimum wage for employees of government contractors. But this isn’t one of the options available to GOP lawmakers.
Rep. Steve King (R-Iowa) in an interview Tuesday blasted President Obama’s move to require new federal contractors to pay their employees above $10.10 a “constitutional violation.”
“We have a minimum wage. Congress has set it. For the president to simply declare I’m going to change this law that Congress has passed is unconstitutional,” King said.
The Iowa congressman suggested that there would be a legal challenge to the move, and said that the nation never “had a president with that level of audacity and that level of contempt for his own oath of office.”
On the substance, the congressman seems confused. Obama isn’t declaring a change to federal law – the federal minimum wage won’t be, and can’t be, changed through executive order.
What Obama has done – and what Steve King should have looked into before talking to reporters – is use his regulatory authority to establish conditions for businesses that contract with the government. According to the administration, Congress already gave the president this authority when lawmakers wrote current law.
Even House Speaker John Boehner (R-Ohio), who complained about the policy on economic grounds, didn’t question the legality of Obama’s move.
But King’s wrong on the politics, too.
A minimum-wage increase is wildly popular and enjoys broad support from across the political spectrum, and yet it can’t pass in Congress because of unyielding Republican opposition. The president can’t change the law, but he can help give some Americans a raise.
The more GOP officials throw a tantrum, the better it is for Obama – he’ll be the one fighting for higher wages, while Republicans position themselves on the wrong side of public opinion. It’s not exactly a winning talking point: “We’re outraged the president is doing something popular without giving us a chance to kill it.”
Indeed, King added this morning, “I think we should bring a resolution to the floor and say so, and restrain this president from his extra-constitutional behavior.”
If Obama has engaged in extra-constitutional behavior, Steve King hasn’t identified it, but if House Republicans want to start some kind of political war over a minimum-wage increase in an election year, I have a strong hunch Democrats would be delighted.
By: Steve Benen, The Maddow Blog, January 28, 2014
“Congress Is On The Ballot In November”: Forget The Conventional Wisdom, What The Numbers Really Say About President Obama
ABC News and the Washington Post have released a new poll indicating that the president is in trouble — and warn that both his standing and the Affordable Care Act hang over the 2014 elections. As ABC News’ Gary Langer put it: “Barack Obama starts his sixth year in office with the public divided about his overall leadership, dissatisfied with his economic stewardship and still steaming about his rollout of the health care law – all factors threatening not only the president but his party in the midterm elections ahead.
Dan Balz and Peyton Craighill write, “Obama’s general weakness and the overall lack of confidence in the country’s political leadership provide a stark backdrop to the beginning of a potentially significant election year.”
While the president surely needs to raise his standing and address many issues, this is a remarkably biased reading of their own poll. Too bad the last month has not fit the narrative of a failed president on a downward trajectory — like George W. Bush.
What is wrong with their interpretation? It’s hard to know where to start.
- They have the president’s approval rating at 46 percent. The average in all the polls is up, not down. Congressional Democrats would be quite content if the president’s approval rating were in the upper 40s. This is not a blip, but rather the trend based on multiple polls. Commentators should pay attention.
- The congressional generic vote is even, but they failed to note that Republicans had taken the lead at the end last year — and that this is an improvement for Democrats.
- Republicans in Congress are at a remarkable low, relative to the president and congressional Democrats. They are 18 points lower than the president on confidence and 8 points behind the Democrats in Congress. How could you ignore that in a congressional election year—especially when voters in this poll express a strong commitment to vote against incumbents? Did they pay attention to earlier polls from Democracy Corps that showed 50 percent (in an open-ended question) think Republicans are in control of the whole Congress?
- Health care produced one of the more amazing contortions in the poll. They focus on Obama’s handling of the rollout and bury the fact that the country is evenly split on whether they favor or oppose the law. As we have said, the issue unites Republicans and is not a winning issue for them in 2014. Maybe the voters are paying attention to Congress’ failure to extend unemployment benefits and pass a minimum-wage bill— issues that have 60 percent support. Maybe there is a reason that Republicans’ standing continues to drag them down.
Many compare Obama’s number after his inauguration and make that the standard for his standing. He took a very hard hit that hurt Democrats. But his position is improving and health care is no wedge issue. The Congress is on the ballot in November, and I urge those reporting on polls to escape the conventional wisdom about the narrative.
By: Stan Greenberg, The National Memo, January 27, 2014
“No Conflicts Here”: How Lawmakers Skirt The Law To Keep Their Next Jobs Secret
When then-Sen. Jim DeMint said he would leave Congress to head the Heritage Foundation 13 months ago, he waited until just 24 hours before the announcement to file an official notice with the Senate that he was negotiating for the new job.
But at least DeMint gave some public notice before accepting the post.
On the day Rep. Dennis Cardoza’s midterm resignation took effect in 2012, Washington law firm Manatt, Phelps & Phillips announced it had already hired him—and the job negotiations were never made public. Nor were any official disclosures regarding job negotiations released prior to the announcement that Rep. Health Shuler accepted a job at Duke Energy when his term expired, or when Rep. Mike Ross was hired by the Southwest Power Pool.
That is not how it was supposed to work. A law designed to prevent conflicts of interest and shed light on lawmakers who negotiate for post-Capitol Hill work while still in office has failed, worn thin by a series of administrative rulings and narrow interpretations.
The result is that lawmakers themselves now determine when a potential conflict exists and when disclosures should be released publicly. Moreover, because the law has yielded almost none of the public information it was designed to provide, it remains largely unknown whom lawmakers negotiate with—and whether their official duties present any conflicts with those employers.
The Honest Leadership and Open Government Act required lawmakers to file public disclosures when they negotiate for work and when conflicts arise. Yet only seven disclosures have been made public in the House since the law was passed in 2007—even though more than 200 lawmakers during that time have resigned, were defeated in a primary, or announced their retirement. Only six disclosures have been made public in the Senate, despite 39 lawmakers leaving between 2008 and 2012.
In this midterm-election year, many more lawmakers will be making decisions about jobs and disclosure in coming months. It is still early, but no public filings have been made by any of the 16 sitting House members who have announced they are leaving Congress at the end of 2014.
In addition to those 16, three other House members have already resigned this session, and all three had outside jobs waiting. But only one of them filed a notice of job negotiations before leaving. Rep. Jo Ann Emerson, a Missouri Republican, officially resigned on Jan. 22 of last year to become CEO and president of the National Rural Electric Cooperative Association. Her disclosure of her job talks is dated Nov. 23, 2012, and reports that negotiations for that job commenced four days earlier.
The two other lawmakers were not required to make their employment negotiations public because of yet another wrinkle in the law that exempts those seeking new jobs in the public sector. Former Rep. Jo Bonner left Congress to take a job in the University of Alabama system, and former Rep. Rodney Alexander left to accept an appointment as secretary of the Louisiana Veterans Affairs Department.
Ethics Issues
There is nothing illegal or unethical about departing lawmakers looking for work while they serve out their terms. But the law was put in place as a transparency measure after former Rep. Billy Tauzin caused a stir by leaving the House in 2003 to take a $2-million-a-year job in the pharmaceutical industry, just months after playing a lead role in drafting legislation to introduce a prescription drug benefit to Medicare.
But the law’s rules apply differently today than they did when was it was passed. For example, in the House, the government panel in charge of the filings was changed from the Clerk’s Office to the Ethics Committee, which is extremely selective about what it makes public. In the Senate, the secretary of the Senate, rather than the Ethics Committee, handles most of these filings, with far different results. A higher percentage of lawmakers there have filed disclosures, and those forms were swiftly made public.
Staffers and lawmakers with direct knowledge of how the House Ethics Committee oversees the law say it is being interpreted so narrowly by officials and lawmakers as to render it ineffective.
They say lawmakers are essentially told they must file notices only when they have an actual job offer and compensation is discussed. And those notices do not have to be made public—they can be kept private by the Ethics Committee—unless lawmakers themselves determine there is a specific conflict and decide they must file a follow-up disclosure or notice recusing themselves.
The upshot is that when lawmakers do file disclosures, those filings often do not go beyond the Ethics Committee. Such apparently was the case for Cardoza, Shuler, and Ross, whose disclosures have never been released. Even the committee itself is sometimes taken by surprise by word that a lawmaker has landed a job.
“I saw a newspaper account that a lawmaker had taken a job—and my jaw dropped, and I wondered, ‘How is it that even I did not know that?’ ” said one former House Ethics official, speaking on the condition of not being identified by name.
Former Rep. John Shadegg took a job as a partner with Steptoe & Johnson in March 2011 but says he had some preliminary contact with the firm before he officially left office. Shadegg said he never filed a notice of negotiations, because the guidance he received from the Ethics Committee did not indicate he had to do so until he was on the verge of being hired, talking details about salary.
Another former lawmaker, who asked not to be identified by name, explained the Ethics Committee guidance he received this way: “I was told that, for instance, if IBM wants to hire you for $1 million, you are not required to report that legally. But the minute I say, ‘I want $1 million and one dollar,’ the law kicks in.”
Asked if he thought it odd that so few disclosures of subsequent potential conflicts have been made public, Cardoza said, “The rules are in place. I am sure there are people who have violated them; and I am sure there are people who have complied with them, and I am one.”
But he also said that there are good reasons that talks that do not result in a job should be kept private. “If you do not take an offer, it hurts your political career—it telegraphs to people you are leaving,” Cardoza said.
Questions of Conflict
Still, the current system can leave lingering questions. Take, for instance, Ross, the Arkansas Democrat who announced in July 2011 that he would not seek reelection in 2012. Ross later announced he would take a job after Congress as Senior Vice President for Government Affairs and Public Relations for the Southwest Power Pool, a non-profit which represented several coal-driven power companies.
That announcement prompted at least one publication, the nonprofit Republic Report, to raise questions about Ross’s earlier cosponsorship of an amendment to delay the Environmental Protection Agency from enforcing the Cross State Air Pollution rule, a rule the Power Pool had pushed to have relaxed.
Republic Report wrote that the situation “raises the possibility that Ross’s legislative activity had been unduly influenced by the prospect of a high-paying job.”
In response, a Ross spokesman told the publication that the lawmaker had begun job negotiations months after his EPA rule-delaying legislation passed the House, and that he would be recusing himself on any issues that provide targeted benefits to his future employer.
The spokesman went on to tell Republic Report, “He properly filed all forms required by the House Ethics Committee. And while the Ethics Committee does not make the form available to the public, in an effort to be transparent, Congressman Ross went above and beyond in announcing who he would be working for when his term in Congress ends.”
Today, Ross is running for governor of Arkansas—and his disclosures still remain unavailable for public viewing.
Meredith McGehee, policy director at the Campaign Legal Center, says the ethics law is being interpreted so narrowly that “it is simply not meaningful.”
“Swiss cheese,” is how McGehee described the current system, while Craig Holman, a legislative representative for the government watchdog group Public Citizen, said the intent of the law was to “let the public know.”
“That was the entire intent,” Holman said.
By: Billy House, The National Journal, January 21, 2014
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