Obama's use of presidential power pales compared to historical precedents
Saturday, Feb 01, 2014 06:15 am
WASHINGTON - Washington was bracing for the bang of the presidential hammer.
What it got instead was the thump of the presidential pillow.
Not all the spin in the world from the White House, nor the hyperventilating hyperbole of its opponents, nor the media reports latching onto a dramatic storyline could change the cold, quantitative reality: when it comes to executive orders, Barack Obama's state of the union speech this week was more routine than revolutionary.
Entering the speech, Obama had averaged 33 executive orders per year — less than every one of his recent predecessors and a mere speck compared to the torrent of presidential power unleashed from the Oval Office in the first half of the 20th century.
FDR would issue them nearly 300 times a year. Other presidents from that half-century weren't too far behind in using a controversial lever of power that has been stoking debate since the dawn of the republic.
So how many did Obama propose in his 2014 state of the union? About a dozen.
His administration hints more are on the way. An investigation on the Politico website concludes his administration has already been quietly muscular in forcing regulatory changes, in all sorts of pockets of the economy. But expectations that he might deliver an executive smackdown, and step over a hostile legislature, failed to materialize this week.
Obama's speech announced an order to create workplace retirement savings accounts. He repeated a pledge to bump up the minimum wage for employees of future federal contractors. Another one would convene a working-families summit.
There had been weeks of feverish speculation leading up to the speech. The buzz was fed mainly by Obama's repeated threats to work around Congress with the power of his signing "pen." There was also a leaked White House memo, word that the president was feeling combative and fresh after a long Hawaii holiday, and the hiring of ex-Clinton staffer John Podesta, a prominent proponent of executive power.
There had been chatter that the president might even announce something big — like amnesty for illegal immigrants, a debt-ceiling extension without congressional input, or an expansion of gay rights.
His opponents were all set to brand him a tyrant. As Obama entered the chamber to deliver his speech, a Texas Republican tweeted about the arrival of the "Kommandant-In-Chef ... the Socialistic dictator." In an earlier interview with another Republican lawmaker, the idea of impeachment even came up.
To hear author Graham Dodds tell it, though, some people in Washington had better brush up on their history. If anything, he says, Obama has been timid on the executive trigger.
"If convening a summit amounts to heavy-handed unilateralism, boy, that's not saying much," said Dodds, an American-born political scientist who teaches at Concordia University in Montreal and has written a book on the history of presidential power called, "Take Up Your Pen."
"He really, I think, is opposed to it perhaps constitutionally — but I think it also goes against his politics, who he is. I think he's really psychologically just averse to heavy-handed confrontation."
As a former constitutional-law professor, Obama is obviously aware of what the U.S.'s fundamental document says about the power of the president.
In fact, the constitution doesn't say a whole lot.
The 18th-century document goes through an exhaustive list of rules for Congress, granting it the authority to make laws, then it adds almost in passing: "The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years." And that's about it.
There's been endless debate about that reference to "executive power" ever since.
Dodds' book raises a few possibilities for why the rules are so unclear: Maybe the framers couldn't reach an agreement on the role of the president. Or perhaps those anti-monarchists were in such deep agreement about the evils of executive power that they just refrained from stating the obvious. Another theory is that they wanted to let future generations shape the office. And, yes, there's always the possibility that they simply messed up.
The book chronicles how presidential powers grew with time.
George Washington declared Thanksgiving a national holiday with one of his orders. In the early days, they were mostly used for things like maritime disputes and military decisions. But since the courts and Congress almost always left those presidential orders alone, Dodds writes, "legitimacy creep" might have set in, allowing the practice to grow.
Executive orders have made history, for better and worse.
Examples include the Louisiana Purchase, the Emancipation Proclamation on slavery, the dropping of the atomic bomb on Japan, modern-day drone strikes, the forced relocation of aboriginal peoples, Eisenhower's use of the National Guard to desegregate schools, Nixon's creation of the Environmental Protection Agency, and the more recent tit-for-tat between Reagan, Clinton, the Bushes and Obama, who have undone one another's guidelines on abortion services, stem-cell research and labour norms.
Dodds' book includes a bar graph on the historic use of executive orders.
That graph is actually shaped like a steep mountain — with the early presidents on a low slope, then a sudden dramatic peak between Teddy Roosevelt and Harry Truman, and finally a decline that persists to this day.
The limits on executive orders have been made clear over time.
For starters, the common quip about them is that they're written in sand, as one president's orders can be easily wiped away by a successor.
Congress can also jam them up, as it did by cutting off funds for Obama's ordered shutdown of the Guantanamo Bay facility. And, on very rare occasions, the courts have also stepped in when an order was deemed to violate the constitution or a law previously passed by Congress.
There will inevitably be some battles over Obama's orders.
His opponents are angry with his unilateral tinkering with dates and deadlines to ease the bumpy launch of his health-care law. His drone strikes have provoked condemnation at home and abroad.
There have been about two-dozen gun-control measures, most notably pertaining to background checks. On climate change, there will be stiff resistance if his administration proceeds in June as planned with greenhouse-gas regulations for old coal power plants.
Still, he's no Teddy Roosevelt.
The commander-in-chief nicknamed "Bull Moose" was given his own chapter in Dodds' book. He not only coined the phrase, "Speak softly and carry a big stick" — he apparently wielded the club of presidential power in unique and unprecedented ways.
Roosevelt tried to order changes to English spelling — so that words like "dropped," for instance, would have become "dropt." Congress thwarted him that time by threatening to cut off funding for the public printer.
He prepared an order to send in 10,000 soldiers to seize coal mines, to force the owners into binding salary arbitration. He closed the post office in a town that mistreated its black postmaster. He once discharged 170 black soldiers without their pensions because a murder was suspected of having been committed by one of them. Roosevelt, though, is perhaps best remembered for his orders creating 150 national forests.
His critics called him, "Caesar," arguing that his autocratic ways threatened the spirit of the republic, but Roosevelt didn't seem to mind: "The constitution was made for the people," he once replied, "and not the people for the constitution."
Obama recently expressed a different view.
A lengthy New Yorker profile describes how he was heckled at different Democratic fundraising events in California late last year by frustrated members of his base. One supporter repeatedly shouted: "Executive order!"
The constitutional-lawyer-turned-president felt compelled to respond.
"I'm going to actually pause on this issue, because a lot of people have been saying this lately on every problem, which is just, 'Sign an executive order and we can pretty much do anything and basically nullify Congress,'" Obama said.
When the crowd started cheering, Obama called it to order: "Wait, wait, wait," he said.
"Before everybody starts clapping, that's not how it works. We've got this constitution, we've got this whole thing about separation of powers. So there is no shortcut to politics, and there's no shortcut to democracy."