Charlie Savage documents a major shift in Barack Obama’s philosophy of presidential authority.
NYT (“Shift on Executive Power Lets Obama Bypass Rivals“):
One Saturday last fall, President Obama interrupted a White House strategy meeting to raise an issue not on the agenda. He declared, aides recalled, that the administration needed to more aggressively use executive power to govern in the face of Congressional obstructionism.
“We had been attempting to highlight the inability of Congress to do anything,” recalled William M. Daley, who was the White House chief of staff at the time. “The president expressed frustration, saying we have got to scour everything and push the envelope in finding things we can do on our own.”
For Mr. Obama, that meeting was a turning point. As a senator and presidential candidate, he had criticized George W. Bush for flouting the role of Congress. And during his first two years in the White House, when Democrats controlled Congress, Mr. Obama largely worked through the legislative process to achieve his domestic policy goals.
But increasingly in recent months, the administration has been seeking ways to act without Congress. Branding its unilateral efforts “We Can’t Wait,” a slogan that aides said Mr. Obama coined at that strategy meeting, the White House has rolled out dozens of new policies — on creating jobs for veterans, preventing drug shortages, raising fuel economy standards, curbing domestic violence and more.
Each time, Mr. Obama has emphasized the fact that he is bypassing lawmakers. When he announced a cut in refinancing fees for federally insured mortgages last month, for example, he said: “If Congress refuses to act, I’ve said that I’ll continue to do everything in my power to act without them.”
Aides say many more such moves are coming. Not just a short-term shift in governing style and a re-election strategy, Mr. Obama’s increasingly assertive use of executive action could foreshadow pitched battles over the separation of powers in his second term, should he win and Republicans consolidate their power in Congress.
Many conservatives have denounced Mr. Obama’s new approach. But William G. Howell, a University of Chicago political science professor and author of “Power Without Persuasion: The Politics of Direct Presidential Action,” said Mr. Obama’s use of executive power to advance domestic policies that could not pass Congress was not new historically. Still, he said, because of Mr. Obama’s past as a critic of executive unilateralism, his transformation is remarkable.
“What is surprising is that he is coming around to responding to the incentives that are built into the institution of the presidency,” Mr. Howell said. “Even someone who has studied the Constitution and holds it in high regard — he, too, is going to exercise these unilateral powers because his long-term legacy and his standing in the polls crucially depend upon action.”
This story has been aggregated on Memeorandum but there are as of yet no blogs shown linking to it. My guess is that it’ll attract several posts from conservative blogs denouncing Obama as arrogant, power hungry, and willing to flout the Constitution. And they’ll be right. If they also contend that this is some shocking break from precedent, however, they’ll be wrong.
Way back in January 2006, I wrote a piece for TCS Daily titled “Real Power Is Something You Take.” It was sparked by the Bush administration’s controversial use of NSA wiretaps.
Nearly half a century ago, legal scholar Edward S. Corwin wrote that, “The Constitution is an invitation to struggle for the privilege of directing American foreign policy.”[1] His argument was that, while the Framers clearly intended for the legislature to be the predominant branch in domestic policy, both branches had substantial power in the realm of international affairs without bright lines to delineate them. Most notably, the Congress had the power to declare war but the president, as Commander-in-Chief, had the power to send troops into harm’s way.
Fictional “Dallas” patriarch Jock Ewing once told his equally fictional son, Bobby, that “Nobody gives you power. Real power is something you take.” All of our great presidents — and some of the less-than-great ones — took great liberty with the Constitution. The have seized the initiative and forced Congress to react.
I then gave several historical examples, noted that the permanent national security state since the onset of WWII exacerbated the situation, and concluded,
Arthur Schlesinger dubbed this largely unchecked growth of executive power the Imperial Presidency. Congress reasserted itself with the 1973 War Powers Act and the 1975 Church Committee hearings but the momentum was too great. Presidents have largely treated the former with impunity and the latter, while halting some of the abuses of the past, has received substantial blame for the intelligence failures leading up to the 9/11 attacks.
If the Constitution is “an invitation to struggle,” it is one that presidents have been winning since the 1940s. The modern president has reversed the Constitutional presumption that Congress is the preeminent branch and the president secondary. Since Roosevelt, it has been axiomatic that “the president proposes, Congress disposes.” That is especially true in foreign policy and even more so in national security matters.
It’s true that Bush doesn’t have the degree of autonomy in this war as FDR and Lincoln did in theirs. But that’s mostly a function of public perception of the nature of a war–what he can get away with, to put it more crassly–than any limitation of constitutional power. Much of what FDR and others have done is extraconstitutional. But bold wartime leaders have been flouting the Constitution since at least Lincoln, with the full support of the public.
Now, what’s interesting here is that Obama is apparently taking the same approach to domestic politics as others have to foreign policy. That’s much more problematic, in that, while the Framers created an “invitation to struggle” in the real of military affairs, they clearly made Congress the dominant actor domestically. Well into the piece, Savage gives examples of Obama’s bypassing of Congress.
The Obama administration started down this path soon after Republicans took over the House of Representatives last year. In February 2011, Mr. Obama directed the Justice Department to stop defending the Defense of Marriage Act, which bars federal recognition of same-sex marriages, against constitutional challenges. Previously, the administration had urged lawmakers to repeal it, but had defended their right to enact it.
In the following months, the administration increased efforts to curb greenhouse gas emissions through environmental regulations, gave states waivers from federal mandates if they agreed to education overhauls, and refocused deportation policy in a way that in effect granted relief to some illegal immigrants brought to the country as children. Each step substituted for a faltered legislative proposal.
But those moves were isolated and cut against the administration’s broader political messaging strategy at the time: that Mr. Obama was trying to reach across the aisle to get things done. It was only after the summer, when negotiations over a deficit reduction deal broke down and House Republicans nearly failed to raise the nation’s borrowing limit, that Mr. Obama fully shifted course.
[…]
Republican lawmakers watched warily. One of Mr. Obama’s first “We Can’t Wait” announcements was the moving up of plans to ease terms on student loans. After Republican complaints that the executive branch had no authority to change the timing, it appeared to back off.
The sharpest legal criticism, however, came in January after Mr. Obama bypassed the Senate confirmation process to install four officials using his recess appointment powers, even though House Republicans had been forcing the Senate to hold “pro forma” sessions through its winter break to block such appointments.
Mr. Obama declared the sessions a sham, saying the Senate was really in the midst of a lengthy recess. His appointments are facing a legal challenge, and some liberals and many conservatives have warned that he set a dangerous precedent.
Senator Harry Reid of Nevada, the Senate Democratic leader, who essentially invented the pro forma session tactic late in Mr. Bush’s presidency, has not objected, however. Senate aides said Mr. Reid had told the White House that he would not oppose such appointments based on a memorandum from his counsel, Serena Hoy. She concluded that the longer the tactic went unchallenged, the harder it would be for any president to make recess appointments — a significant shift in the historic balance of power between the branches.
For the most part, this is small beer. Congress has, over the years, delegated–some would say abrogated–much of its regulatory power to Executive agencies, which then exercise quasi-legislative authority. Since the president heads the Executive–indeed, he’s the only purely Executive official mentioned in the Constitution–this delegation gives him, by extension, quasi-legislative authority as well. He can issue executive orders which are indistinguishable in practice from full-fledged laws passed by Congress. While Congress can strip him of that ability with regards to any specific agency–or overrule any specific executive order–at any time, the institutional obstacles that make presidents so eager to find ways around Congress also hamstring Congress’ ability to actually fight back.
The most egregious of the examples Savage cites was Obama’s decision in January to issue recess appointments when Congress was not in recess. Doug Mataconis argues cogently that this probably wasn’t unconstitutional, since Congress was only in pro forma session for the sole purpose of preventing a recess appointment. Legal challenges have been filed, so we may get a ruling from the Supreme Court on this at some point–unless they duck it as a “political question.”
I’m not at all happy with the president’s actions here. Not only do I disagree with most of his decisions from a policy standpoint but I’d argue the policy issues at stake here not sufficiently pressing to justify crisis mode actions. At the same time, however, it’s hard to blame him–or any president–for finding ways to act in the face of a Congressional strategy of constant obstructionism.
Historically, the minority has used its powers to obstruct on issues of enormous social consequence. That’s absolutely in keeping with the design of our system, which was intended to prevent radical policy change being forced on the entire country based on bare majority support. The filibuster and other tools of obstruction were an additional safeguard to protect the states, at least serving to slow down change until a larger consensus was reached. In recent years, however, these extraordinary measures have become ordinary, used on the most trivial policy disputes. Or, indeed, as a tool of partisan gamesmanship even when no actual policy dispute exists. (Or, to be more precise, to keep Members of the opposite party from voting with the president even when they agree.)
In such an environment, presidents have two choices: accede and fritter away their terms or use extraordinary means of their own to bypass. No modern president would have found that a difficult choice at all.
I should note as postscript that my own view on this has evolved along with the president’s. Two years ago, writing about the first round of Obama recess appointments, I observed,
[W]hile the president has a right to feel frustrated, the usual procedure has been to make some sort of deal. Generally, the most controversial appointee or three is sacrificed and the opposition party is allowed to have input in the process, essentially reversing the appointment procedure and allowing the Senate to quasi-appoint some noncontroversial folks. Instead, Obama has continued a recent trend of abusing the recess appointment process, which exists solely because the Framers envisioned Congress being out of session for months at a stretch, not as a backdoor way to bypass the Senate when it’s on hiatus for a few days.
So, what’s changed? The “usual procedure” is no longer in operation. That is, the Republican leadership has made it clear that they’re not simply using their powers to leverage a better deal but rather in keeping the president from acting, period. It’s one thing to try to force Obama to put less radical people on the NLRB, quite another to prevent his putting anyone on the NLRB. We have regulatory boards which literally don’t have an operating quorum and appellate courts which are getting further behind in their case load because they’re understaffed.
