Why the Fight Over Executive Authority Will Define the Rest of Barack Obama's Presidency


Official White House Photo by Pete Souza

President Barack Obama returns to the Oval Office after giving interviews in the Rose Garden of the White House, May 6, 2014. 

It's axiomatic to the point of cliché that in their second terms, presidents turn their attention to foreign affairs, where they have latitude to do what they want without having to get Congress's permission. By the time they've been in office for five or six years, they're so fed up with wrangling 535 ornery legislators that they barely bother anymore, and without an election looming (and with approval ratings often sliding down), they concentrate on what they can do on their own.

But faced with an opposition of unusual orneriness—perhaps more so than any in American history—Barack Obama has made clear that he won't just be concentrating on foreign policy. He'll be doing whatever he can to achieve domestic goals as well, even if Republicans have made legislating impossible. The conflict over the actions he has taken so far and the ones he'll be taking in the future are likely to define the last two and a half years of his presidency.

The decision on recess appointments handed down last week by the Supreme Court is only the beginning. When the Court ruled that Obama had exceeded the authority granted to him by the Constitution in making a group of appointments to the National Labor Relations Board, it wasn't particularly surprising, even though Obama's use of recess appointments has actually been quite spare compared to previous presidents. As a point of comparison, Ronald Reagan made 232 recess appointments, George W. Bush made 171, and Bill Clinton made 139; by February, Obama had made a mere 32. But the particular appointments that gave rise to this lawsuit occurred while the Senate was in pro forma session, a technique used precisely to deny the president the ability to make recess appointments. (Leaders essentially gavel the Senate into session, then gavel it out again without conducting any business.) Obama decided to test the whether the pro forma session restrained his recess-appointment power by naming appointees to the NLRB during one; the Court concluded that a pro forma session still counts.

When he took that action, Obama surely knew the question would wind up in front of the Court and be resolved; I assume he thought it possible that he might lose. But he was pushed to that point by Republicans' own unusual tactics. They decided that they would hold up nominations not as a way of stopping particular nominees they don't like, but as a way of sabotaging entire agencies. By refusing to confirm any nominees to the NLRB, they essentially shut it down, making it impossible for it to issue rulings in labor disputes—which in practice means that management always wins, since they're the ones with the power. GOP leaders tried to do the same thing with the Consumer Financial Protection Bureau, being quite open and candid about the fact that they objected to the CFPB's entire mission (imagine—protecting consumers!), and so would refuse to confirm any director to head the agency so it would be hamstrung.

It was these tactics and others—you could even call them a tyrannical usurpation of power from the opposition in Congress, if you were of a hyperbolic bent—that have led Obama to seek out creative, and perhaps even occasionally problematic, ways to govern despite an opposition party that is almost fanatically opposed not just to his policy goals but to the very idea of him governing at all. Don't forget that literally the day Obama took office in 2009, Republican congressional leaders gathered and decided that they would use every tool at their disposal to thwart anything and everything the new president wanted to do.

The idea that Barack Obama is a lawless tyrant has now moved from the Republican fringe into its center, and it is poised to become the organizing principle of their opposition from this point forward. The health-care reform enacted in the Affordable Care Act is achieving its goals too well to keep fighting it; Democrats have all the most popular arguments on economic issues; and though Obama may have poor approval ratings on matters like Iraq, he's in the same place as the public is, and the most unpopular thing of all is the kind of bellicose interventionism Republicans support.

Crying about presidential "lawlessness" has the advantage of avoiding those policy arguments, sounding principled about democracy, and simultaneously nurturing the anger of a base that has always believed Obama's presidency is illegitimate. (Consider that after the 2012 election, one poll found that 49 percent of Republicans believed that ACORN stole the election for Obama, which would have been awfully hard for the organization to do, the fact that it went out of business two years before being only one reason.) So the only real question about the lawsuit soon to be filed by House Speaker John Boehner (a man perpetually looking in fear over his right shoulder) with a yet-to-be revealed list of lawless actions by the president is what took the speaker so long.

If you ask Republicans what they mean when they call Obama a tyrant, you'll find that for every real example of Obama pushing at the limits of presidential authority, there are a dozen cases in which he did something squarely within his power, but they just didn't like the substance of what he was doing. They're angry that the Affordable Care Act was "rammed through" Congress without their consent—but by "rammed through" they mean over a year of hearings and meetings and votes.

They're angry that the administration has delayed the implementation of some parts of the ACA—but such delays in the implementation of complex laws are routine and have occurred many times before.

They're angry that the EPA will be setting new regulations on carbon emissions from power plants—but such regulations are not only within the agency's power to create, they're actually mandated by the Clean Air Act, as the Supreme Court ruled in 2007.

They're angry that the president ordered that the deportation of young people ("dreamers") who were brought to America as children and graduated high school or joined the military be given a low enforcement priority, allowing them to stay for now—but variants of the technique of effectively legalizing something by making it a low enforcement priority have been used in many places and at many times before.

You'll notice that in their litany of supposed "lawlessness," Republicans have no examples in which Obama acted to achieve something they agreed with him about on the substance. In most of these cases and others like them, what Republicans find particularly infuriating is that they thought they had successfully used the legislative process to stymie Obama, only to find that he had other means at his disposal to move forward on his goals.

Over the next two and a half years, there will be times when Barack Obama—like his predecessors did—calls his legal advisors into the Oval Office and asks them, "Do I have the power to do this?" Sometimes the answer will be yes, other times it will be no, and sometimes the answer will be that it's not clear, and the only way to know for sure is to go ahead and take the action, wait for a lawsuit, and let the Supreme Court decide. That's what happened in the recess appointments case: the Court had never addressed the issue before, so Obama took the risk and lost. Given the conservative majority on the Court, he may well lose other cases about presidential power. But at this point, nothing is going to stop Republicans from crying "Tyranny!" almost no matter what he does. We're in for a long two and a half years.  


Face it, it takes a special skill to get your agenda through Congress. Barry thought he could "community organize" through Congress, rabblerouse, and force Republicans to bow to his majesty. Not only wouldn't they do that, but as his failures keep piling up he has lost all credibility to get anything done.

He may find an end run around Congress, but all it will take is a "stroke of the pen" to undo the damage.

Many of the comments on this thread pretty well illustrate the points made by the article.

Face it, it takes a special skill to get your agenda through Congress. Barry thought he could "community organize" through Congress, rabblerouse, and force Republicans to bow to his majesty. Not only wouldn't they do that, but as his failures keep piling up he has lost all credibility to get anything done.
He may find an end run around Congress, but all it will take is a "stroke of the pen" to undo the damage.

Well, it takes some people skills - ya know - instead of insulting and demeaning people. Like telling them 'we won you lost - elections have consequences' and that he 'had to break the stimulus package into pieces so the Republicans can understand it' -- and when asked if he talked to the CEO of BP Oil after the oil spill he said 'why would I talk to a CEO, they only tell you what you want to hear'. He's much more comfortable in talking to Iran's leaders - I guess he respects them.

Obama hasn't been faced with an opposition any worse than Reagan faced, or Clinton faced. The problem with Obama is that he is the most arrogant, ego driven, inept, and INCOMPETENT President in all of U.S. history. He can't work well with his own party, and he's never tried to reach out to work with Republicans like Bill Clinton did. Even leading Democrats have complained that Obama doesn't work and play well with others. Obama's attitude from day 1 has been "We Won" and after that he's done his best to demonize and destroy Republicans. Any Republican that trust Obama for even a second is likely to find a political knife in their back and their throat slashed. As for recess appointments, other Presidents made them when the Senate was in recess, and the practice of pro forma sessions was perfected by the democrats to block Bush first, not the Republicans. Obama's is a master of deception and hypocrisy. He's tried to demonize the Republican for voting NO on raising the DEBT ceiling, when the only time Obama bothered to vote on the DEBT ceiling as a Senator he voted, NO, and added a speech about how irresponsible the DEBT was. Obama is a lawless, divisive, totally political failing floundering President, whom nobody trusts. That is his legacy.

Sub title - "Obama finds a way around the Constitution and the Congress who was elected to enact legislation."

Clinton dealt effectively with the egomaniacal Gingrich, Bush got things done with his antithesis Nancy Pelosi and yet "O" the accomplished orator and Noble Peace Prize winner can't find common ground with John Boehner?

That is what you get with a person who has zero accomplishments in life.

Shut off his money. Until Obama learns some manners, every time he increases his lawlessness, cut off another program. Start by de-funding the IRS, then the EPA, then Eric Holder's organized crime operation, then NSA, etc. Obama must be stopped. He is destroying the country and he must be stopped , cold.

The SC decision on recess appts was 9-0.

Obama has a 40% approval and more importantly a 52-54% disapproval rating. The American people have seen through his lies and corruption. But Obama is going for broke. He will be judged one of the worst presidents in history. Maybe even worse than G. W. Bush.

No way do we impeach Obama. I'd rather sit back an watch as he destroys the Democrat brand.

You libt@rds are pretty sad.

Remarkable. If the situation were reversed, and a Republican president asserted his intention to unilaterally impose his policies regarding energy, or the environment, is there any doubt that the first voice of outrage would be Senator Barack Obama. And the second would be Paul Waldman. Obama shows that power trumps principle. He can't get Congress to enact his policies, so he throws constitutional principle aside and claims he has the executive power to effect his domestic agenda. Waldman, so anxious to see that agenda implemented, throws principle aside to wrap Obama's actions in this transparent sophomoric spin. Obama is a threat, because he will encourage future Republican (and Democratic) presidents to become super legislators if they don't get their way with Congress. Waldman is a threat because he's a political advocate masquerading as a journalist. The result for both is the same. Obama is now preaching to his choir, only. And no one outside the choir reads Waldman.

Obama is truly the worst President the US has ever had. Sad, given the hype that attended his election. I was willing to cut him some slack at first. the old "he inherited a mess" routine. But somewhere in those first four years should have come the point where he took control. Not doing so, whatever the opposition, is failure. Obama is a failure. Period. Full stop. At this rate, years after he is out of office he will still be whining about how "governing is hard - those mean Republicans wouldn't let me do anything". And no, "doing something" by breaking the law is no better than the unemployed man who robs a bank - Obama's executive overreach is lawless and unconstitutional - if he has no respect for the Constitution he swore to uphold then Congress should impeach him.

I could say a lot more but the ACA was literally stuffed down America's throat by all kinds of lawless acts, special deals/bribes for D's, not a single Rep was allowed to even see much less read the bill. Nancy bragged about we have to vote for the bill to see what is in it. In the Senate a special way to get it approved was to not allow Sen Brown from Mass to vote on it. Reed's iron fist control of the senate and NOT allowing even votes to happen on Rep house bills has left a bitter taste that will take a long time to got away. Going nuke on filibusterers was icing on the cake. There has not even been 1 normal budget since O arrived. After the bill was passed by hook and crook prez O has changed the law, an unlawful act by prez O on 20 occasions or so and counting. Reed says there will be no vote it won't pass anyway. The Senate has been hijacked by Reed the dictator. If you think anyone cam wave a magic want and forget these thing you are being naive.

The Disaster a Day presidency rolls on . . . . Forward, indeed! http://goo.gl/9CmJIx

I have never heard so much damn whinning, Pres. Obama can't do anything right,huh
you sound like republicans that got their asses handed to them two elections in a row.
'where was that Romney landslide.

This statement is totally wrong: "They're angry that the EPA will be setting new regulations on carbon emissions from power plants—but such regulations are not only within the agency's power to create, they're actually mandated by the Clean Air Act, as the Supreme Court ruled in 2007."

In the recently decided case of Utility Air Regulatory Group v. Environmental Protection Agency the Supreme Court said: "The Act-wide definition to which the Court gave a "sweeping" and "capacious" interpretation, id., at 528 , 532 , is not a command to regulate, but a description of the universe of substances EPA may consider regulating under the Act's operative provisions." http://www2.bloomberglaw.com/public/desktop/document/Util_Air_Regulatory_Grp_v_EPA_No_121146_121248_121254_121268_1212

Funny, all those years Bush was destroying the economy, and bankrupting the country through two unwinnable wars, he was hailed as a hero, and every Democrat who disagreed with him was unamerican. Why is that any different then what the Republicans are doing now? They"ve lost the last two presidential elections, still managed to keep control of the House, yet, instead of governing as they were elected to do, all they seem capable of is obstructing, obstructing, obstructing! Well, that and whining like small children who can't have their way and don't like the people telling them no. Name me one instance of the Republicans actually coming up with a usefull piece of legislation over the last 6 years.

Tinley; There are approximately 200 pieces of legislation passed in the house that Harry Reid refuses to bring up. The legislative roadblock is in the Senate.

And how many pieces of legislation has your hero John Boehner refused to bring up for a vote? Bet that number is way past 200. By the way, name me one of Bush II's programs that was voted for repeal 49 times (or is it 50+ now; I've lost count) by the House. Legislation which, by the way, was found legal by your other right wing heroes, the Supreme Court of the United States.

You need to be logged in to comment.
(If there's one thing we know about comment trolls, it's that they're lazy)