Column: Presidential lawlessness? Hardly
WASHINGTON — House Budget Committee Chairman Paul Ryan calls President Obama’s tenure “an increasingly lawless presidency.” Texas Sen. Ted Cruz cites “the president’s persistent pattern of lawlessness.”
House Judiciary Committee Chairman Bob Goodlatte called a hearing to examine how Obama “has blatantly disregarded the Constitution’s mandate to faithfully execute the laws.”
And first-term Texas Rep. Randy Weber amped up the rhetoric an ugly notch, with pre-State of the Union tweets — from the House floor, no less — denouncing Obama as “Kommandant-In-Chief” and a “Socialist dictator.”
These assessments are overwrought, veering on unhinged — with the exception of Weber’s, whose hinges seem to have fallen off entirely.
But overwrought doesn’t equal unimportant. Presidential power tends to be a one-way ratchet; few presidents voluntarily cede power that a predecessor has accumulated.
So it’s worth turning down the partisan volume and assessing Obama’s edgiest actions: Suspending certain deportations in the face of congressional refusal to take that step; delaying and revising parts of the Affordable Care Act; effectively rewriting the No Child Left Behind law through sweeping waivers; and, most recently, unilaterally ordering an increase in the minimum wage for federal contractors.
These are push-the-envelope moves but strike me as within the bounds of the modern presidency. Some historical perspective:
First, the constitutional tug-of-war between the president and Congress is as old as the republic — indeed, an essential element in the constitutional design. The framers were wary not only of creating a monarchical chief executive but also one hobbled by congressional interference.
Second, there is a robust history of presidents pushing ambiguous constitutional boundaries to engage in unilateral action. Jefferson executed the Louisiana Purchase despite his own doubts about its constitutionality. Lincoln issued the Emancipation Proclamation, notwithstanding the Constitution’s recognition of slavery and his own concerns about the proclamation’s susceptibility to legal challenge.
Third, this trend toward broad presidential power has accelerated in recent decades, under presidents of both parties — even before George W. Bush’s aggressive use of signing statements, and his war on terror.
In a 2001 Harvard Law Review article, Elena Kagan, a veteran of the Clinton White House, traced the growth of presidential power over regulatory agencies to Ronald Reagan (in pursuit of efforts to loosen regulations) through Bill Clinton (in pursuit of more activist government, a way around a balky Congress, and political credit).
Clinton’s unprecedented interventions, she wrote, represented a “significant enhancement of presidential power over regulatory matters.”
Fourth, assessments of presidential overreach are inherently matters of situational ethics: How you judge whether a president is overstepping his authority is inevitably colored by whether you agree with the substance of that exercise.
Put more bluntly, much of the hoopla about presidential imperialism is politics dressed up in constitutional clothing, to be put on and off depending on which party holds the White House.
Thus, Democrats condemned what they saw as Bush’s unilateral excesses, while Republicans remained largely silent and unconcerned. Now, the roles are precisely reversed.
Immigration offers one particularly inflammatory example. Republicans denounce Obama for having evaded congressional refusal to pass the DREAM Act by unilaterally declaring that some children of undocumented immigrants will not be subject to deportation. Meanwhile, some on the left complain that he has not taken more aggressive action by suspending all deportations.
“A lot of people have been saying this lately on every problem ... just sign an executive order and we can pretty much do anything and basically nullify Congress,” Obama said in November. “That’s not how it works. We got this Constitution. We got this whole thing about separation of powers and branches.”
So where does Obama fit on the spectrum of presidential power-grabbing? Johns Hopkins political scientist Benjamin Ginsberg, co-author of “Presidential Power: Unchecked and Unbalanced,” is, as that title suggests, a fierce critic of presidential overreach. But he places Obama on the mild end of such abuses.
“There has been an onward march toward presidential unilateralism,” Ginsberg told me. “Obama has been the least aggressive, least unilateral, of our recent presidents.”
By contrast, University of Chicago political scientist William Howell, author of “Thinking about the Presidency: The Primacy of Power,” is less wary of presidential muscle-flexing. Yet he sees Obama’s behavior as largely in line with that of his predecessors.
“The dominant theme is one of continuity across presidents,” Howell told me. “What’s striking to me are the ways in which Obama’s behaving a lot like Bush, who was behaving a lot like Clinton.”
Worth keeping in mind as Obama wields the pen and the phone, and Republicans work to paint him as a lawless autocrat.
Ruth Marcus’ email address is firstname.lastname@example.org.