A typical State of the Union address is criticized for being a "laundry list," little more than an endless string of proposals the president would like to see enacted. The criticism usually has two parts: first, most of the items on the laundry list will never come to pass, and second, it makes for a boring speech (the pundits who make the criticism seem to care more about the second part). Last night's SOTU didn't have the usual laundry list (which of course meant that it was criticized for being too vague), but the one specific proposal getting much attention today is President Obama's idea to require that on future federal contracts, all workers be paid at least $10.10 per hour. So naturally, Republicans are crying that this is the latest example of Obama's tyrannical rule, in which he ruthlessly ignores the law whenever he pleases.
As Ted Cruz wrote in today's Wall Street Journal, "Of all the troubling aspects of the Obama presidency, none is more dangerous than the president's persistent pattern of lawlessness, his willingness to disregard the written law and instead enforce his own policies via executive fiat." Is there anything to this criticism? Is Obama more of a tyrant than, say, his immediate predecessor? Let's take a look.
We've seen this again and again with Republican critiques of Obama, that a substantive criticism over a policy often gives way to a process criticism. For instance, Republicans often complain that the Affordable Care Act was "rammed through" Congress before anyone had a chance to know what was happening, by which they mean it was debated for over a year, sent through endless hearings, and eventually passed by both houses of congress and signed by the President, and how could that be legitimate? In this case, they know that debating the merits of a minimum wage increase is a political loser, since an increase is supported by between two-thirds and three-quarters of the public in every poll. So it's much safer to criticize this executive order as inherently unlawful.
In this particular case, however, there's no question that what President Obama has proposed is neither illegal nor particularly tyrannical. Does the president have the authority to set rules that federal contractors must abide by through an executive order? Yes he does. Does that extend to the wages of the employees who work on federal contracts? Yes it does. If Congress wanted to pass a law rewriting these rules, it could, but unless it does, the president can do it himself. And of course, the next president could reverse Obama's rules if he or she chose.
So there's nothing illegal or oppressive about this executive order; the problem conservatives have with it is substantive. It's possible, however, that they have a broader case to make that Obama is a tyrant. This is a familiar debate, because all presidents chafe at the limits on their power, and many have tried to test those limits. For instance, George W. Bush pushed at the limits of presidential power mostly in the area of national security. I myself can recall using the "tyranny" word with regard to the case of Jose Padilla, whom you may recall as the "dirty bomber," though the government eventually gave up their assertion that he planned to set off a dirty bomb. What was so dangerous about the Padilla case was that the official position of the Bush administration was that the president had the authority to order a U.S. citizen arrested on U.S. soil, then imprison him for life without charging him with any crime or giving him a trial. It also held that the courts had no right to examine their decision to do so. I do not exaggerate; that was their position. (In the end, when the Supreme Court was about to rule on the case and it was clear the administration would lose, they changed course and put Padilla through the civilian criminal justice system, after holding him for years without charge and subjecting him to a program of solitary confinement and sensory deprivation that quite literally drove him insane.)
There were other memorable ways the Bush administration asserted, sometimes quite openly, that it was above the law. Sometimes it would simply attach a new name to what it was doing; torture is illegal, so when we torture prisoners, we're not actually torturing them, we're using "enhanced interrogation." My personal favorite may be when Dick Cheney proclaimed that as a member of the executive branch, he could use executive privilege as a justification for ignoring congressional subpoenas for documents, but that he was also exempt from laws covering the executive branch, because the vice president is also President of the Senate and therefore part of the legislative branch, though he isn't subject to their rules either. Cheney declared himself a kind of quantum government official, existing simultaneously in both places yet in neither place, so that he was subject to no laws that restrained either branch.
As for President Obama, there are certainly some areas in which he has tested the limits of presidential power. Just like every president before him, he has made recess appointments when Congress is in something that may or may not qualify as a "true" recess (the Supreme Court is taking up this question). He ordered that deportations of "dreamers"-young people brought to America illegally who are completing school or military service-should be a low enforcement priority, which was a legal way of temporarily creating a situation similar to a law (the DREAM Act) that hasn't yet been passed. And he has delayed some of the provisions of the Affordable Care Act like the employer mandate, which conservatives cried was outside his authority to do, complete with the requisite invocations of King George III. But as Simon Lazarus noted, delays of regulatory enforcement are common, and the courts rarely find the delay illegal unless it goes on indefinitely and can't be justified.
In all these cases, it's true that Obama sought ways to bend the law to his policy preferences. But in every case, he found a way, completely within the law.11 As it happens, Obama has issued relatively few executive orders-168 so far, compared to George W. Bush's 291, Bill Clinton's 364, Ronald Reagan's 381, and Franklin Roosevelt's 3,522. The volume doesn't tell you how many of the orders were constitutionally questionable, of course, but if he were really a tyrant one might think he'd work harder at it. That's what's happening with the minimum wage; he can't raise it for all workers without Congress passing an increase into law, but he can raise it for those who work on federal contracts, so that's what he's going to do.
You may recall that some conservatives have been calling Barack Obama a tyrant almost from the moment he took office. That's because they viewed his very occupation of the White House as fundamentally illegitimate, so anything he does must by definition be outside the law. For months they railed angrily against White House "czars" who were supposedly wielding unaccountable power and were the prime evidence of Obama's tyrannical rule, even though none of them could explain what a "czar" was and how it differed from a person who works on the White House staff. But that lessened their fury not a whit. And none of them were concerned in the least about the ways George W. Bush circumvented the law. That's because they agreed with the substance of Bush's policies.
So no, Barack Obama is not a tyrant. If conservatives want to argue that it would be a bad thing if people working on federal contracts made an extra buck or two, they should try to make that case. But I doubt they will.
