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.  

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