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A Question of Power: The Robust Presidency


Depending on the day and audience, President Barack Obama has been called many things, only some of which are fit to print: Wall Street stooge, Main Street sellout, foreign policy novice, socialist. One consistent strain of criticism, however, draws on the theme of executive overreach or, less politely, tyranny. And it is this line of criticism I want to explore here, if only to sketch out a limited defense of Obama’s repeated efforts to exercise power in a system of government that does so much to privilege the status quo. 

After spending much of his first term in office courting Republican support within Congress, Obama has consigned himself during his second term to some basic facts about contemporary politics: legislative support resides nearly exclusively among co-partisans; rather than softening partisan cleavages, soaring rhetoric about transformational politics will do as much to harden opposition; and the most prevalent opportunities for advancing policy change come not from working with Congress but from working around it.

It comes as little surprise, then, that Obama is fashioning a policy record made of executive orders and other unilateral directives that, by turn, increase the minimum wage for employees of federal contractors, alter overtime pay requirements for workers nationwide, strengthen the oversight of gun purchases, expand environmental regulations, reconfigure domestic and international spying practices, initiate strikes against suspected terrorists abroad, draw down the U.S. military presence in Afghanistan and much more. As announced in his State of the Union speech earlier this year, Obama would no longer wait for Congress to legislate on pressing domestic and international policy matters. Consciously eschewing the “stale political arguments” and “gridlock” that pervade Washington, the president repeatedly signaled his intention to act on his own. 

Before he even finished speaking, Republicans began casting Obama as a grave threat to the constitutional order. On the morning of the speech, Sen. Ted Cruz, a Republican from Texas and darling of the Tea Party movement, took to the pages of The Wall Street Journal to accuse the president of “(disregarding) the written law.” Cruz declared that the “pattern of lawlessness” exhibited by the Obama administration threatened to transform America from a nation ruled by law to one ruled by men. And not just any group of men, but one man: Obama. 

Cruz was not the only Republican to take issue with Obama’s embrace of executive power. Rep. Randy Weber of Texas tweeted from the floor of the speech that Obama was a “socialist dictator.” The next day, former Republican Pennsylvania senator and past presidential candidate Rick Santorum said that Obama’s speech was “what tyrants are made of.” Conservative pundits enthusiastically concurred. The so-called imperial presidency, which had once so frightened Democrats, now stood in full view of Republicans. 

Much of this talk, to be sure, can be chalked up to the everyday posturing of contemporary politics, which are long on magniloquence and short on reason. For as sure as politicians will pander to our baser instincts, Republicans and Democrats will each whip up a thick froth of indignation over what they perceive as gross abuses of the Constitution wrought by a sitting president of the opposite party. Though Republicans may be the ones making hay today, under the George W. Bush administration Democrats read abuse into nearly every exercise of presidential power.

The partisan undertones of these arguments may not be intellectually serious, but that does not mean the arguments themselves do not warrant serious intellectual consideration. The American presidency, like our system of checks and powers more generally, remains very much a work in progress. The precise meaning of “executive power” has always been contested. To make sense of our politics and the president’s role within them, then, we would do well to look upon them if not from 30,000 feet, then at least above the cacophony of today’s headlines. And when we do, some basic patterns emerge that clarify why presidents behave as they do – and how we, the American public, are complicit in the matter.

Two facts go a long distance toward explaining the president’s relationship with – and persistent longing for – power. The first points to the Constitution. The second implicates Americans themselves.

If not an empty cupboard, Article II of the Constitution offers a rather paltry food supply to a president seeking sustenance in today’s politics. Formally, the president can veto legislation, although his veto is subject to congressional override. He can appoint bureaucrats and judges, although these powers too are subject to the Senate’s advice and consent. He can receive foreign dignitaries, a power that was largely ceremonial in conception. And he is the commander in chief, a position that was primarily administrative.  

When it comes to unambiguous conferrals of influence, that is about it. The founders may have created a system of separated branches, each independent of the others. Such branches, however, were decidedly not coequal. To the contrary, Congress was understood to be the first branch of government, and many of the powers granted to the president – e.g., the veto – were meant to guard against legislative encroachment. 

On their own, these basic facts about the Constitution are not especially problematic. The trouble emerges when the spindly Article II sits as backdrop against the extraordinary demands and expectations the American people place upon their presidents. These demands and expectations, to be sure, have evolved over time. Nearly all the trend lines, though, point upward and outward, so that today it is difficult to even conceive of a subject of legitimate government action on which the president can punt. 

We expect our presidents to assign meaning to our tragedies, direct water to our droughts, stand up to Russian aggression while ensuring the sanctity of international markets, contain terrorist threats while preserving our civil liberties, advance tough standards of accountability in our schools, reduce our crime, allay the ravages of urban poverty and so much more besides. There simply is no dimension of public life about which the president can claim neither an opinion nor responsibility.  

Given the standards to which we hold presidents and the inadequacy of the enumerated powers granted them, it should not come as a great surprise that presidents – all presidents – work doggedly to preserve what statutory authority is delegated to them, read broadly into the vague constitutional provisions, manufacture new tools of influence and expand, whenever possible, the influence they wield over domestic and foreign policy. They must. To do otherwise is to invite nearly universal reprobation.

There may be political costs to those presidents who overreach. The greatest blows dealt, however, occur when presidents do not vigorously and publicly advance the nation’s interests. To do anything less, particularly during times of crisis, is to court disaster – as Bush, the flyover president, learned in the aftermath of Hurricane Katrina; and as Obama, the flaccid intellectual, learned during the showdown over the debt ceiling in the summer of 2011. In such moments, presidents appear distinctly unpresidential.

Presidents do not pursue power out of vainglory  (though vainglorious they may be). They do so to satisfy us, by whom I mean the contemporary public that holds them and their parties in continual judgment, and the historians who discern and eventually define their legacies. Both constituencies demand action – forthright, public and unapologetic. Those presidents who act are those who fulfill the obligations of their office. Whether their actions and accomplishments are sufficiently prudent, sensitive to the Constitution or statutory limitation, or in line with public sentiment, remain in our politics matters of secondary importance.

If we are troubled by the bold exercise of presidential power, it will not do to beseech the president to change his ways while simultaneously holding him to such outsized expectations. We would do better, if we are serious about the matter, to demand that the adjoining branches of government – namely, Congress and the courts – curtail the power options available for presidents. More foundationally still, we should scale back the demands we so profligately deposit at the feet of our president.

When it comes to power, the dominant trends across presidential administrations are ones of continuity rather than change. The ideological commitments of Bush and Obama differ radically. But when it comes to power, they – like so many of their predecessors – are of a piece.

Seeing one of their own assume the presidency in 2009, constitutional law scholars and liberal Whigs anticipated that Obama would restore some semblance of balance to our national politics.  Such hopes, though, proved to be misplaced.  Rather than temper the use of presidential power, he has worked hard to extend it.  

Like Bush, Obama has steadfastly defended his executive privileges, just as he has staunchly guarded private information about all matter of foreign policy matters. Through unilateral directives, he has successively escalated and de-escalated two major wars abroad. Only in light of the scrutiny caused by the Edward Snowden leaks has he pledged any meaningful curtailment of the national security state. In the aftermath of legislative setbacks, Obama has used all sorts of executive orders on both domestic and foreign policy matters. He continues to rely on executive agreements, which do not formally require Senate ratification, in lieu of treaties, which do.

In many ways, then, Obama picked up where Bush left off. His policy objectives differ dramatically from his predecessor’s. But the project of building, protecting and expanding executive power is much the same.

Nonetheless, to the ongoing project of presidential expansion, Obama proffers innovations of his own. Some, such as the transformation of modern warmaking through drones, have received a fair measure of public attention. One of the most striking, however, has been hiding in plain sight: the president’s efforts to rewrite major education policy through waivers and administrative fiat.

Obligations over education policy are enshrined in state constitutions, not the federal Constitution. Some of the most striking policy developments of the last half-century, however, have come at the behest of the national government. Tracing back to the original Elementary and Secondary Education Act (ESEA) of 1965 and following on with the creation of a federal Department of Education under the Carter administration, the federal government generally, and the American president in particular, has sought to influence the ways in which children learn around the country.

Such developments came to a head under the George W. Bush administration. Indeed, arguably the single most important domestic policy achievement of his presidency was the 2002 enactment of No Child Left Behind (NCLB). With this law, the federal government helped propagate new systems of accountability, ones that set clear benchmarks for student learning and consequences for schools and districts that failed to meet them.

In 2007, NCLB was first up for reauthorization.  Seven years later, it remains so. And in the interim, Congress has done nothing to rectify the most glaring faults of this legislation.

Rather than wait on Congress to fix NCLB, Obama has begun to offer waivers to individual states. Although NCLB remains on the books, he has told states they are free to ignore its most onerous provisions. But he doesn’t stop there. The provision of waivers is conditional upon each state’s willingness to take up alternative education policies endorsed by the administration – policies, it should be noted, that differ from the contents of NCLB and that most likely would not withstand the legislative process in Congress.

As a general matter, legislation has always trumped unilateral and administrative directives emanating from the president. Executive orders and the like, as a result, have traditionally had to operate in the gaps between legislative pronouncements. But no longer when it comes to federal education policy. Through waivers, Obama is effectively remaking federal law, at once dismantling his predecessor’s signature policy achievement and codifying in law his own education policy. Rather than working around Congress’ handiwork, then, the president is refashioning it entirely on his own.

What is to be done about this state of affairs? Is ours now a tyrannical presidency, one wholly unaccountable to the people and undaunted by legal or constitutional restraint? And if so, do we have a responsibility to put the president back into the narrow confines established by a narrow reading of Article II powers?

On questions as complex as these, reasonable people can differ. My own view is that the modern presidents are not the bogeymen so many make them out to be. Two reasons help explain why.  

First, ample checks remain on the exercise of presidential power. At nearly every turn, presidents confront impediments to their agenda. In Congress, the courts, the administrative state and the larger populace, presidents run up against organized and vocal opponents who work assiduously to undermine their influence. Confer with a former adviser of the president, and she will regale you with tales of heartache and frustration as her boss sought to implement even the most common-sense policy reforms.

The second reason I am not especially keen on reducing the president’s power concerns the alternatives on offer. If not the president, then which branch of government can we reliably turn to address the kinds of deep, trenchant, complex national problems we face? With Congress mired in gridlock and the courts institutionally incapable of engaging the minutiae of policy debates, presidents alone offer the kind of leadership needed to address the challenges of climate change, the debt, entitlement reform, and on and on. As the Progressives recognized a century ago, the institutional capacity of the government to solve social problems critically depends on a robust American presidency.

In debates about presidential power, originalist understandings of the Constitution have their place. But so do pragmatic concerns about the capacity of our government to meet contemporary challenges. For the national perspective he offers, the longer time horizon he maintains, and the unique capacity to act with “energy and dispatch,” as Alexander Hamilton recognized so long ago, we ought not to shout “tyranny” every time a president uses his powers toward ends we may not share. Presidents who behave this way are not tyrants. Far from it. Rather, in line with their predecessors, they are doing their best in an impossible situation – expected at once to solve massive and complex problems while brandishing constitutional powers fashioned in a bygone era of agrarian farmers, limited government and international isolationism.  

 

 

William Howell is the Sydney Stein Professor in American Politics at the University of Chicago. He is the author, most recently, of “Thinking About the Presidency: The Primacy of Power” (Princeton University Press) and co-author with Saul Jackman and Jon Rogowski of “The Wartime President: Executive Influence and the Nationalizing Politics of Threat” (University of Chicago Press). 

 

Monte Harmon

November 10, 2014 - 12:43pm

There are too many problems with your article to address them Mr Howell. Your presuppositions about 'our' expectations of a president and the presidents 'obligation' to fulfill them have led you down an entirely different path of reasoning than the founders would have tolerated. Own your feelings and dreams about this country, but don't make the mistake of thinking you understand those of anyone else.

John Turnbull

July 14, 2014 - 6:57pm

National Conference of State Legislatures NCSL tells us that “while separation of powers is the key to the workings of American government, no democratic system exists with an absolute separation of powers or an absolute lack of separation of powers. Governmental powers and responsibilities intentionally overlap; they are too complex and interrelated to be neatly compartmentalized. As a result, there is an inherent measure of competition and conflict among the branches of government. Throughout American history, there also has been an ebb and flow of preeminence among the governmental branches. Such experiences suggest that where power resides is part of an evolutionary process.

Separation of powers forms the cornerstone of the constitutional framework envisioned by the Founding Fathers to ensure a form of government in which no individual or group ever becomes too powerful. For example: • Congress (legislative branch) can pass laws, but the president (executive branch) can veto them. Congress can override the president's veto.”

My two years of service in the United States Navy enabled me to graduate from Boston University Law School in 1947 with honors and the privilege of serving as Editor-in Chief of its Law Review. Since then I have kept abreast of the history of how the Constitution has been used and abused by the Congress, the Presidency and the Supreme Court. I had this history in mind when I read the articles written by Professors Turley and Howell that appeared in the Legion’s June 2014 issue. I completely agreed with everything Turley had to say. I also agreed with Howell’s findings until he attacked what he called “the narrow reading” of the powers granted to the President by the Constitution’s Article II.

Both men rightly criticized the extent to which Presidents have used and abused their office by adopting powers and enforcing policies about which the Constitution has nothing explicitly to say and to which the members of Congress adversely react only when the President belongs to the other party. Both men bemoan the refusal of the courts, especially the Supreme Court, to rule on the constitutionality of these powers and policies.

Turley foresees the creation of an imperial presidency that will result in the death of one of the greatest republics in history, an event passively accepted by a democracy whose people who will not “even notice its passing.” Even so, he wants the people to be ultimately responsible for its death, not the result of the actions of a tyrannical President. Howell, on the other hand, argues that because the Congress is “mired in deadlock and the courts institutionally incapable of engaging the minutiae of policy debate, presidents alone offer the kind of leadership needed address the challenges of climate change, the debt, entitlement reform, and on and on.” He prefers to attribute the Republic’s death to the possible actions of a President who didn’t do what Howell expected him to do, namely, do personally what he believes the Congress and the judicial system have failed to do.

The American people have never been taught that the Republic’s eventual demise began in 1913 with the passage of the seventeenth amendment to the Constitution, which took the election of the U. S. Senate out of the hands of the State Legislatures and vested it in the electorate, whom the Founding Fathers called a “mob.” This amendment was deliberately orchestrated by the same group of wealthy bankers who, in the same year, persuaded the President and the Congress to pass a Federal Income Tax Law and establish a Federal Reserve System. The seventeenth amendment turned what had been a Republic into a democracy, a form of government that, as Turley points out, quoting President John Adams, “soon wastes, exhausts and murders itself. There was never a democracy yet that did not commit suicide.”

John Turnbull

July 14, 2014 - 6:54pm

National Conference of State Legislatures NCSL tells us that “while separation of powers is the key to the workings of American government, no democratic system exists with an absolute separation of powers or an absolute lack of separation of powers. Governmental powers and responsibilities intentionally overlap; they are too complex and interrelated to be neatly compartmentalized. As a result, there is an inherent measure of competition and conflict among the branches of government. Throughout American history, there also has been an ebb and flow of preeminence among the governmental branches. Such experiences suggest that where power resides is part of an evolutionary process.

Separation of powers forms the cornerstone of the constitutional framework envisioned by the Founding Fathers to ensure a form of government in which no individual or group ever becomes too powerful. For example: • Congress (legislative branch) can pass laws, but the president (executive branch) can veto them. Congress can override the president's veto.”

My two years of service in the United States Navy enabled me to graduate from Boston University Law School in 1947 with honors and the privilege of serving as Editor-in Chief of its Law Review. Since then I have kept abreast of the history of how the Constitution has been used and abused by the Congress, the Presidency and the Supreme Court. I had this history in mind when I read the articles written by Professors Turley and Howell that appeared in the Legion’s June 2014 issue. I completely agreed with everything Turley had to say. I also agreed with Howell’s findings until he attacked what he called “the narrow reading” of the powers granted to the President by the Constitution’s Article II.

Both men rightly criticized the extent to which Presidents have used and abused their office by adopting powers and enforcing policies about which the Constitution has nothing explicitly to say and to which the members of Congress adversely react only when the President belongs to the other party. Both men bemoan the refusal of the courts, especially the Supreme Court, to rule on the constitutionality of these powers and policies.

Turley foresees the creation of an imperial presidency that will result in the death of one of the greatest republics in history, an event passively accepted by a democracy whose people who will not “even notice its passing.” Even so, he wants the people to be ultimately responsible for its death, not the result of the actions of a tyrannical President. Howell, on the other hand, argues that because the Congress is “mired in deadlock and the courts institutionally incapable of engaging the minutiae of policy debate, presidents alone offer the kind of leadership needed address the challenges of climate change, the debt, entitlement reform, and on and on.” He prefers to attribute the Republic’s death to the possible actions of a President who didn’t do what Howell expected him to do, namely, do personally what he believes the Congress and the judicial system have failed to do.

The American people have never been taught that the Republic’s eventual demise began in 1913 with the passage of the seventeenth amendment to the Constitution, which took the election of the U. S. Senate out of the hands of the State Legislatures and vested it in the electorate, whom the Founding Fathers called a “mob.” This amendment was deliberately orchestrated by the same group of wealthy bankers who, in the same year, persuaded the President and the Congress to pass a Federal Income Tax Law and establish a Federal Reserve System. The seventeenth amendment turned what had been a Republic into a democracy, a form of government that, as Turley points out, quoting President John Adams, “soon wastes, exhausts and murders itself. There was never a democracy yet that did not commit suicide.”

diesel dude

May 29, 2014 - 7:37pm

I have to agree with ogb5650 that Mr. Turley is, in essence, a bought and paid for hack for the Obama regime. Why the American Legion is permitting Obama hacks like this to sell the socialist's snake oil is beyond this veteran's comprehension and it gives me pause as to whether I want to continue my membership.

ogb5650

May 22, 2014 - 3:15pm

Professor Turley would seem to have more credibility, being a Professor of law and used as a frequent witness before Congress on Constitutional issues. Professor Howell on the other hand comes from Chicago, Obama's adopted hometown and center of his power, and is a Professor of "American Politics", meaning he is not interested in the Laws of the Constitution.

Quikwit

May 21, 2014 - 9:07am

First, clearly, the so-called "ample checks" are not working. Second, we must turn to Congress. Factional interests must resolve their interests in the cauldron of Congress. That is the Constitutional way. The fact that your preferred policy prerogatives are being hampered by a recalcitrant Congress does not justify Constitutional overreach. The fact that we have immature dolts running the ship does not either. If we cannot turn reliably to the current Congress, then to quote a wise man, "throw the bums out." That, too, is the Constitutional way. Finally, the Constitution is intended as a restraint on change. To quote its very purpose as the reason to abrogate it is wrong. And while we must not shout "tyranny" every time the President uses his ennumerated powers towards ends we may not share, we are certainly entitled to shout "tyranny" when he uses powers not lawfully vested in him by our Constitution. You're missing the point, dude.

kjj

June 2, 2014 - 2:38pm

WELL SAID...it is not by accident that we the people vote every two years on 1/3 of 1/2 of that check and balance, and it is time we do indeed "turn the bums out..." I do not hold the house or senate in contempt for not acting when the alternative to move just a little more in what I consider the wrong direction...I do however hold some in the house and senate responsible for the mess we have gotten into over the last decade...change seems should be in the air, but what part of our population wants is a public that can't or won't think for themselves...heaven forbid...just going along to get along is not the answer anymore than total deadlock is...more of our public need to think about consequences of their vote...take it seriously for a change, and make it matter.

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