“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
“The ‘Lawless’ Presidencies Of Barack Obama And Ronald Reagan”: Consistency Must Count For Something, Otherwise It’s Hypocrisy
The headline emerging from last week’s SOTU address continues to be the President’s stated intent to go around Congress, where necessary, to effectuate elements of his agenda through the use of the executive order.
So grave is the situation—according to conservative leaders and pundits—Congressman Paul Ryan (R-Wisc.) took to the airwaves this weekend to warn one and all that we now have “an increasingly lawless presidency.”
Tea Party firebrand, Rep. Steve King of Iowa, could not agree more.
Indeed, so concerned is King with Obama’s decision to order up a raise for those employed by federal contractors, he referred to the executive action granting the wage increase as a “constitutional violation”, adding “we’ve never had a president with that level of audacity and that level of contempt for his own oath of office.”
Still, a highly placed White House aide noted that there are a number of things “the President can unilaterally do,” stating that “With a hostile Congress that doesn’t show much sign of coming toward us on some of these issues, it behooves us to take the initiative when we can take it.”
There is, however, one thing I should point out regarding the sequencing of events set forth above.
While Paul Ryan and Steve King are certainly functioning in today’s highly charged political environment, the White House aide who made the statements regarding the President’s ability to do many a thing unilaterally—particularly when a hostile Congress is not cooperating with the president’s agenda—was none other than Gary L. Bauer, chief domestic policy advisor to President Ronald W. Reagan. What’s more, the statements were made in August of 1987 and were the direct result of the years of frustration Reagan had experienced at the hands of a Congress that simply would not get with his program.
Sound familiar?
Of course, nothing President Reagan did through the use of his executive order power could possibly match the severity of Obama’s attempt to get around an obstructionist Congress in order to accomplish his own agenda, right?
Not so much.
Do the words ‘National Security Agency’ ring a bell?
The NSA, of course, is the government body that has been collecting our phone and Internet data while spying on Americans and foreigners (including foreign leaders) in ways that have infuriated the very Republicans—along with just about everyone else—who hold Ronald Wilson Reagan up to be the icon of modern day conservatism.
As a result, you might be surprised to learn the following bit of history:
It was President Reagan’s infamous Executive Order 12333 (referred to as “twelve-triple-three”) that established and handed to the NSA virtually all of the powers under which the agency operates to this day—allowing the agency to collect the data that so many now find to be so offensive.
McClatchy describes Executive Order 12333 as follows:
“It is a sweeping mandate that outlines the duties and foreign intelligence collection for the nation’s 17 intelligence agencies. It is not governed by Congress, and critics say it has little privacy protection and many loopholes.”
If you view Reagan’s actions as an appropriate use of the executive order, Tea Party/GOP Congressman Justin Amash (R-MI) would beg to differ.
Speaking at a gathering hosted by the Cato Institute, Amash described Congressional hearings into the actions of the NSA as follows:
“Amash describes those briefings as a farce. Many times, he says, they focused on information that was available from reading newspapers or public statutes. And his account of trying to get details out of those giving the briefings sounds like an exercise in frustration:”
“So you don’t know what questions to ask because you don’t know what the baseline is. You don’t have any idea what kind of things are going on. So you have to start just spitting off random questions: Does the government have a moon base? Does the government have a talking bear? Does the government have a cyborg army? If you don’t know what kind of things the government might have, you just have to guess and it becomes a totally ridiculous game of 20 questions.”
Congressman Amash’s displeasure over Congress’ neutered role when it comes to the NSA does not stop him from frequently quoting the words of Ronald Reagan—despite Reagan’s responsibility for supplanting Congress in this regard—particularly when it comes to The Gipper’s declaration that “libertarianism is the heart and soul of conservatism.”
The use of the Executive Order has long been controversial, dating back to President Abraham Lincoln’s use of the device to suspend habeas corpus along the Philadelphia to Washington line in response to the assault on Union troops in Baltimore.
What made Lincoln’s move so dramatic is that the suspension of habeas corpus is placed by the Founding Fathers in Article I of the Constitution—the section that lays out the powers reserved for Congress.
However, as Jennifer Weber of the New York Times notes in her excellent piece on Lincoln’s use and abuse of power, the Founders “muddied the water” on just who could order a suspension of habeas corpus by writing, “the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”
Whether you view Lincoln’s actions as a proper exercise of power by the Commander-In-Chief during a time of emergency, or blatant defiance of the Constitution by the President of the United States, I don’t recall too many modern Americans—Democrat, Republican or otherwise—referring to Abraham Lincoln as a “lawless” president.
Nor do I recall many of the Republicans who worship at alter of Ronald Wilson Reagan referring to him as a “lawless” president.
None of this is to say that Presidents Lincoln, Reagan, Obama—or the many other American presidents who have relied upon the executive order—are acting in obedience to our Constitution or that they are not. That is up to the Courts to decide.
What it is to say is that, once again, consistency must count for something.
If you disagree with what President Obama might have in mind to do through the use of the executive order, you may have constitutional authority to back you up. Indeed, I acknowledge my own concerns about presidents who go around Congress’ lawmaking authority by using the executive order, no matter how much I may disapprove of our current and recent incarnations of Congress.
However, to take the tact of accusing Mr. Obama of a “lawless presidency”, while lauding previous presidents who did the identical thing, is just so much more hypocrisy on the part of leaders like Congressman Ryan who are far more wedded to the process of scoring political points than they are to remaining true to history or governing with good intent.
Or could it be that people like Paul Ryan—a man who holds a great deal of power and responsibility in our government—are simply ignorant of our history and the subject matter upon which they deign to expound?
Either way, there is little comfort to be gained when our system is so disgustingly politicized that a president is accused of lawlessness when following in the very same footsteps of previous presidents hailed as some of the greatest heroes of the nation.
By: Rick Ungar, Op-Ed Contributor, Forbes, February 3, 2014
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