by Linda Feldmann
Ju Hong’s voice rang out loud and clear, interrupting the most powerful man in the world.
“You have a power to stop deportation for all undocumented immigrants in this country!” the young South Korean man yelled at President Obama during a speech on immigration reform last November in San Francisco. Waving away security guards, Mr. Obama turned and addressed Mr. Hong, himself undocumented. “Actually, I don’t,” the president said. “And that’s why we’re here.”
“We’ve got this Constitution, we’ve got this whole thing about separation of powers,” Obama continued. “So there is no shortcut to politics, and there’s no shortcut to democracy.”
The reality isn’t so simple. Obama, a former constitutional law lecturer, was once skeptical of the aggressive use of presidential power. During the 2008 campaign, he accused President George W. Bush of regularly circumventing Congress. Yet as president, Obama has grown increasingly bold in his own use of executive action, at times to controversial effect.
The president (or his administration) has unilaterally changed elements of the Affordable Care Act (ACA); declared an anti-gay-rights law unconstitutional; lifted the threat of deportation for an entire class of undocumented immigrants; bypassed Senate confirmation of controversial nominees; waived compliance requirements in education law; and altered the work requirements under welfare reform. This month, the Obama administration took the highly unusual step of announcing that it will recognize gay marriages performed in Utah – even though Utah itself says it will not recognize them while the issue is pending in court.
Early in his presidency, Obama also expanded presidential warmaking powers, surveillance of the American public, and extrajudicial drone strikes on alleged terrorists outside the United States, including Americans – going beyond Mr. Bush’s own global war on terror following 9/11. But more recently, he has flexed his executive muscle more on domestic policy.
In the process, Obama’s claims of executive authority have infuriated opponents, while emboldening supporters to demand more on a range of issues, from immigration and gay rights to the minimum wage and Guantánamo Bay prison camp.
To critics, Obama is the ultimate “imperial president,” willfully violating the Constitution to further his goals, having failed to convince Congress of the merits of his arguments. To others, he is exercising legitimate executive authority in the face of an intransigent Congress and in keeping with the practices of past presidents.
The course of Obama’s final three years in office, in which he has promised continuing assertive use of executive action, will be shaped by this debate.
The tug of history
On the eve of Obama’s fifth State of the Union message, on Jan. 28, the president faces a steep challenge. His job approval has plummeted to the low 40s, following the disastrous rollout of his health-care reform and public outrage over massive data collection by the National Security Agency. Unemployment is falling steadily but remains high, at 6.7 percent.
“We’re 4-1/2 years into an alleged recovery, and most Americans still think we’re in a recession,” says William Galston, a Clinton White House veteran and scholar at the Brookings Institution in Washington.
Even though Obama will never face the voters again, he has plenty of incentive to boost his game. Now he’s playing for his legacy, and the judgment of the history books. Politically, he’s playing for the final national election of his presidency – next November’s midterms, in which Democratic control of the Senate is at risk. Reclaiming the House from the Republicans is close to impossible. Divided government is Obama’s near-certain reality for the rest of his presidency.
Still, keeping the Senate in Democratic hands remains critical to Obama’s legacy: It will allow him to confirm presidential nominees – including most judges, who have lifetime tenure – with a simple majority after Senate Democratic leader Harry Reid engineered a rule change last November.
Restoring public confidence in Obama’s trustworthiness and competence as an executive is also critical, as the president tries to move beyond the “Obamacare” fiasco and National Security Agency snooping. Republicans are already firmly lashing the health reform’s woes to Democratic candidates’ necks. But nothing will impress voters more than a sense that their personal financial situation is improving. Cue Obama’s focus on what he calls “the defining challenge of our time,” growing inequality and a lack of upward mobility. It will be a central theme in the State of the Union message, including a call for Congress to boost the federal minimum wage.
Early in the new year, White House officials were cautiously optimistic that the December budget deal may signal new momentum toward bipartisan cooperation, at least in future budgetary and fiscal matters. Republicans would rather keep the spotlight on Obamacare woes than risk public blame for another government shutdown or more brinkmanship over the debt ceiling, which the Treasury Department says will be reached in late February.
But one point is certain: It’s a new day for Team Obama. John Podesta, former chief of staff to President Clinton and a turnaround artist, has put on his cape and swooped into the West Wing for a one-year tour as a counselor. The president has also brought back the highly regarded Phil Schiliro to oversee the continuing health-care rollout and made deputy communications director (and Capitol Hill insider) Katie Beirne Fallon his legislative affairs director.
But it’s the arrival of Mr. Podesta that has Washington buzzing. He ran the Obama transition after his first election and then repaired to his think tank, the Center for American Progress, resisting entreaties to join the administration. Most important, his passion is climate change, and he’s a big believer in executive action – by the president himself, as well as via agency rules and regulations.
“I think [White House officials] were naturally preoccupied with legislating at first, and I think it took them a while to make the turn to execution. They are focused on that now,” Podesta told Politico last year before agreeing to his new White House gig. “They have to realize that the president has broad authority, that he’s not just the prime minister. He can drive a whole range of action. They always grasped that on foreign policy and in the national security area. Now they are doing it on the domestic side.”
Starting with George Washington, American presidents have used executive orders, proclamations, and other techniques to wield power, usually without controversy. These moves can be as important as the Emancipation Proclamation, and as trivial as an executive order allowing federal workers to leave work early on Christmas Eve.
They carry the force of law, but are ill-defined. Legal scholars disagree even on whether there’s a constitutional “bright line” that defines what a president can do on his own and what requires congressional action.
“It gets controversial when a president simply states that he’s acting under the power granted to him by the Constitution and laws of the United States,” says Phillip J. Cooper, author of the book “By Order of the President: The Use and Abuse of Executive Direct Action.”
Bush invited controversy with his aggressive use of “signing statements,” written pronouncements during bill signings that explain the president’s view of a law – including at times the constitutionality of some aspects of it. In his first presidential campaign, Obama decried Bush’s practice, but as president, he has continued it.
In their use of executive orders, Bush and Obama are virtually tied: In his first five years in office, Bush issued 165 orders, versus 167 by Obama. But a bean-counting approach doesn’t capture the scope of a president’s approach to executive power.
“It’s really the character of the actions, and their subject,” says Jonathan Turley, a constitutional scholar at George Washington University in Washington, D.C. “In my view, Obama has surpassed George W. Bush in the level of circumvention of Congress and the assertion of excessive presidential power. I don’t think it’s a close question.”
Many of Obama’s most controversial power plays have come through means other than executive orders. Here are some examples:
• Deferred Action for Childhood Arrivals (DACA). This policy, announced by the Department of Homeland Security in 2012, came via a memorandum that directs authorities to exercise “prosecutorial discretion” in dealing with some young undocumented immigrants.
If they meet the criteria for eligibility, they are shielded temporarily from deportation and allowed to work. The DACA program enacted many of the goals of the failed DREAM Act legislation, though it does not create a path to citizenship.
Critics say that waiving deportation laws for more than a million people is not “prosecutorial discretion” – it’s policymaking by executive fiat, usurping the role of Congress. Simon Lazarus, senior counsel at the Constitutional Accountability Center, disagrees, calling DACA “perfectly compatible with the president’s discretion in the immigration area.”
Ten immigration agents challenged DACA in federal court, saying the policy undermined their duty to enforce the law. Last summer the judge threw out the case on jurisdictional grounds, but suggested DACA was inherently unlawful.
Politics also infused how both sides handled DACA. For Obama, it was an obvious play for the Latino vote ahead of the 2012 election. For congressional Republicans, even if they could have attained “standing” to sue – a major problem in efforts to challenge executive action – acting to undo a policy that helps sympathetic young immigrants would have been bad politics. So they chose not to fight it.
• Obamacare. Last July, when the president delayed the mandate for large employers to provide health coverage for their employees by a year, his critics cried foul.
The Obama administration also did an about-face on the requirement that members of Congress and their staff get their health insurance via the government exchanges, without the government subsidy they were receiving under the Federal Employees Health Benefits Program. Under the ACA, they would not have been eligible for subsidies – leading to fears of a brain drain from Capitol Hill.
Last August, the Office of Personnel Management issued a rule allowing Hill employees to keep their federal subsidy for health insurance. The plans offered through the exchanges qualified as “health benefit plans” for the purposes of the subsidy, OPM said.
• Gay marriage. Another bracing move by the Obama administration came in 2011, when the Department of Justice announced it would no longer defend in court the Defense of Marriage Act, a 1996 law that banned federal recognition of same-sex marriages. The Supreme Court went on to strike down part of the law last June, but that does not lessen the highly unusual nature of an administration declaring on its own that a law was unconstitutional, before the court had ruled.
• Recess appointments. In yet another aggressive use of executive action – bypassing the Senate in making recess appointments to key executive branch positions when the Senate is technically still in session – Obama may be on the verge of getting slapped down by the Supreme Court. On Jan. 13, the high court heard arguments over Obama’s three controversial recess appointments to the National Labor Relations Board in 2012.
Looking across the landscape of Obama’s bold record of executive action, Turley of George Washington University doesn’t mince words.
“President Obama meets every definition of an imperial presidency,” says Turley, who notes that he voted for Obama. “He is the president that Richard Nixon always wanted to be.”
The Constitution states that the president “shall take care that the laws be faithfully executed.” Critics say that in decreeing changes to laws – such as the delay of the employer mandate under the ACA – Obama has repeatedly violated that constitutional command.
Others defend Obama, saying that the president’s critics are using the Constitution as a political weapon. Mr. Lazarus says the critics “flout long-established Supreme Court precedent and they contradict the consistent practice of all modern presidencies, Republican and Democratic, to implement complex and consequential regulatory programs.”
Indeed, Democrats defend Obama’s changes to the ACA with a list of ad hoc changes the Bush administration made to the Medicare prescription drug program when it went into effect in 2006. But when he was asked directly about the delayed employer mandate in a New York Times interview last July, Obama didn’t argue for the legality of his moves or raise the precedent of the rollout of Bush’s drug plan. Instead, he lashed out at his critics.
“There’s not an action that I take you don’t have some folks in Congress who say that I’m usurping my authority,” Obama said. “Some of those folks think I usurp my authority by having the gall to win the presidency.”
Constitutional scholar Lou Fisher is baffled by Obama’s personal response. He believes Obama was justified in delaying the employer mandate on constitutional grounds as well as by “the practical need to avoid harming the program through effective and premature implementation,” as he put it in a December article in the Boston Review.
“Obama’s not interpreting the law; he’s changing the law,” says Mr. Turley. “He’s changing deadlines that were the subject of intense legislative debate.”
“He could have argued that you encounter things you don’t anticipate” when implementing a major law, says Mr. Fisher, who spent 40 years at the Congressional Research Service as a specialist on separation of powers. “But no, he keeps digging himself in deeper.”
The politics of executive power is risky. Wielding it often, instead of going through Congress, can look like a crutch. And it further poisons the well of already icy relations with Congress. Then there’s the issue of an executive order’s durability, and the reality of elections that, sooner or later, bring the opposition party into power.
“Executive orders can be undone very easily,” says Mr. Galston, the former Clinton aide. “If you want to make enduring change, you have to work through the established institutions and procedures for making such changes.”
Obama says he prefers getting congressional buy-in, rather than moving unilaterally. But getting Congress to act has become a Sisyphean task. Last year was one of its least productive on record; its most memorable act may have been failing to fund the government, leading to a shutdown.
Not that there’s anything wrong with issuing executive orders as a legitimate function of the presidency, Galston notes.
“Within appropriate limits, the president ought to use them,” he says. “You don’t have to be a great and subtle reader of the Federalist Papers to know that Alexander Hamilton, the father of the executive, talked about it as the source of energy in the government.”
But sometimes that energy can create its own momentum. Obama’s frequent use of executive action has only whetted activists’ appetite for more, squeezing the president from the left even as his critics scream tyranny and, along the fringe, talk about impeachment.
Remember Ju Hong, the young South Korean man who was invited to stand with the president during an immigration reform speech – and suddenly began heckling him? Obama’s DACA move was huge and controversial, but for immigration reform activists, it was only a start. Why not just give every otherwise-law-abiding undocumented immigrant a free pass while Congress sorts out the law? some ask.
Obama clearly believes he can’t do that, but what’s not clear is whether he might decide he can waive deportation for another group, such as the parents of the young DACA beneficiaries.
On the issue of inequality, Obama is urging Congress to raise the federal minimum wage – a campaign that has boomeranged back on the president: Progressives are lobbying him to use his executive authority to raise the minimum wage for federal contract workers, but he hasn’t responded. Some liberals in Congress openly question whether he’s more talk than action.
On gay rights, Obama has long faced pressure to sign an executive order banning workplace discrimination against gay, lesbian, and transgender federal contractors. But he has resisted, saying he would rather Congress pass the broader Employment Non-Discrimination Act. ENDA would prohibit workplace discrimination based on sexual orientation by most employers, but the legislation is stalled.
On Guantánamo, Obama was outmaneuvered by Congress after he signed an executive order early on ordering the controversial detention center closed. And so it remains open. But in the eyes of some legal experts, Obama is failing to take creative advantage of his power as commander in chief in dealing with the camp.
“Win, lose, or draw, it is time to get around Congress,” writes Harvard University law professor Noah Feldman at Bloomberg.com. “And if ordinary politics won’t do the trick, going to the courts may be the best option – because it is the only one.”
Checks and imbalances?
Obama prefers to pick his fights and the timing of them carefully as he wields executive power. And for members of Congress who want to stop him, the remedies for perceived overreach are limited. Lawmakers who feel the president has flouted the laws they have passed have trouble getting “standing” in court to sue the executive branch.
Some try anyway. On Jan. 6, Sen. Ron Johnson (R) of Wisconsin filed suit to challenge the administration’s decision to subsidize the health insurance of members of Congress and their staff, against the letter of the ACA. Sen. Rand Paul (R) of Kentucky is filing a class-action lawsuit against the National Security Agency over its bulk phone-record collection.
At the recent House Judiciary Committee hearing on presidential power, witnesses presented other options. “The ultimate check on presidential lawlessness is elections and, in extreme cases, impeachment,” said Nicholas Rosenkranz, a law professor at Georgetown University.
Another witness suggested that Congress become more assertive. “Congress has lots of power, if it chooses to use it,” said Lazarus of the Constitutional Accountability Center. “The power of the purse is an enormous power, and I think that if I were you I would find ways to influence policy in using the Congress’s powers, which you’re not doing.”
In addition, public opinion could dampen the president’s enthusiasm for taking matters into his own hands. In a Christian Science Monitor/TIPP poll taken Jan. 4-7, Americans said they did not favor a president taking executive action when Congress is gridlocked. In general, 41 percent of Americans approved of executive action in such cases, with 55 percent disapproving.
On expanding gay rights, 43 percent approved of the president acting on his own, while 53 percent disapproved. On the question of shielding new categories of undocumented immigrants from deportation, 33 percent approved of presidential action, and 63 percent disapproved. On raising the minimum wage for federal contractors, 38 percent wanted Obama to act, and 58 percent didn’t.
Obama’s final mark
Year 6 holds the key to the rest of Obama’s presidency. Can he regain the trust of the American people? Will the ACA begin to work? Can Democrats hold onto the Senate?
Obama’s three immediate predecessors all endured crises in their second terms. Presidents Reagan and Clinton recovered politically and left office with strong economies. Bush did not. Solid economic performance in the next year would go a long way toward helping Obama recover, though presidents have limited ability to affect the economy on their own.
What can Obama do to overcome the problems of Year 5?
“The only thing in this image-saturated age is a real accomplishment,” says Jeremy Mayer, a public policy professor at George Mason University in Fairfax, Va. “It has to be something concrete; it can’t be oratory. Oratory cannot save him anymore.”
If Obama can say that 10 million Americans have health insurance who didn’t have it when he was inaugurated, that’s something. Ditto a breakthrough in the Israeli-Palestinian peace process, or an end to the Syria conflict. Foreign policy is often the refuge of second-term presidents.
Some Republicans see an opportunity to move on immigration reform this spring, though in piecemeal fashion, which is OK with Obama as long as the bills accomplish his broad objectives – including a path to citizenship.
But if that effort fails, 2014 could be the year of executive action. On Jan. 3, Obama announced two executive measures aimed at making it easier to keep firearms out of the hands of the mentally ill. Podesta’s arrival at the White House may foreshadow action on climate change.
“John is a guy who knows how to get things done,” says Elgie Holstein of the Environmental Defense Fund and a former colleague of Podesta’s in the Clinton White House.
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Linda Feldmann is a writer with the Christian Science Monitor.