Monday, April 23, 2012

Obama and Presidential Power

Charlie Savage in the New York Times today has an extended article claiming that Barack Obama has, as the Times headline has it, had a "Shift on Executive Power." Savage talks a lot about executive orders in areas in which the president can't get Congress to do what he wants, and also makes much of the recent recess appointments despite a Senate which was notionally not in recess at all.

Marty Lederman responds sharply, arguing that there's an enormous difference between a president who uses authority that's been legitimately delegated by Congress or approved by the courts, compared with a president who attempts to undercut the law. I think that's mostly right. Presidents -- and executive branch agencies -- are certainly going to interpret the law as they see fit, and that's exactly how the system is supposed to work (as are Congressional attempts to force implementation along the lines that they prefer). Fights among the White House, Congress, bureaucrats, interest groups, and others over exactly how policy will be enacted are normal. What was unusual about George W. Bush's approach to signing statements wasn't attempts to implement laws in the ways he understood them to have been written; it was his unilateral declaration that he was just going to treat portions of laws that he himself was signing as null and void.

On the other hand, aggressive use of the legitimate powers of the presidency are, I would argue, quite a good thing. The presidency is a Constitutionally weak office that individual presidents can make very influential through careful use of Constitutional and statutory powers (such as executive orders) and through political skill. And that, as Richard Neustadt argued long ago, is one of the best hopes for what Neustadt called "viable public policy." At least it is if also combined with a vigorous Congress, courts, and other players in the system. 

My own sense of these things is that the biggest problems come when a president treats others within the system -- the courts, executive branch agencies that resist the president's policies -- as less legitimate than the White House, and take actions to match that attitude. As Lederman says, it's one thing to argue in court that a law is unconstitutional; it's quite another to threaten not to carry out a court order. On the whole, I don't think that Savage makes a case that Obama has crossed that line.


  1. But, the Bush side of the story can't be told without including the entirely complicit Congress. Congress didn't push back on Bush's expansions or signing statements one little bit. It was, frankly, pathetic. The Courts did more pushback than Congress did. And not just in the GOP-run years; Congress rolled over under Pelosi as well. They OBJECTED to Bush's power grab, but didn't combat it.

    Under Obama? I've seen little to no spine from Congress to grab back some of that power. Under Pelosi, there was no attacking their guy; under Boehner, it's just temper tantrums and policy fights--nothing about Congress' role.

    Yes, Bush's signing statements are jaw-dropping for their sheer chutzpah. But, Obama's actions on Libya speak to a cementing of the reality that we seem to be moving towards an even-more presidency centered system.

    1. Agreed on all points. Congress needs vocal citizens to push it to do anything, otherwise it's the usual political interests and systemic inertia that makes things happen. The anti-SOPA campaign is a good example of what can be done. There's a tremendous capacity for political activism right now, but most of it is channeled towards doing nothing more than to bring a particular party to power.

  2. That's a pretty good point about Congress.

    I'm not very convinced that Libya is worth talking about a lot. It's long been established and basically agreed to that no one cares about the literal rules under the War Powers Act. It's long been established that no one is going to use declarations of war. It's also long been established that major military interventions will be accompanied by Congressional authorization votes, but that minor military interventions won't be. Libya is, to me, just another data point of where exactly the line lies as far as what types of deployments "need" Congressional votes.

  3. Great post, I do really like the Neustadt argument about how the presidency can function best. My own favorite example of this is from Michael Beschloss' great book about LBJ "Reaching for Glory" in which Johnson foretold the downfall of his presidency after he lost a obscure DC home-rule vote in Congress shouting at his aides something along the lines of "Now they see they can beat us and they'll just bleed us to death!" And he was quite right, the same strong arm tactics that got most of his agenda through Congress ultimately made him too many enemies. You kinda see the same dynamic in Game of Thrones season one where King Robert-despite the fact that the King of Westeros has far more relative power in his society than a President-constantly finds himself constrained by other political actors in his system even though in theory his rule should be absolute.

  4. obama is a good speacher and bad achiever #truth


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