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Obama vs. Romney: Executive Authority

A President's Power: GRAPHIC



Despite criticizing the George W. Bush administration’s exertion of executive power, Obama has approached the exercise of that power in a way that is more like Bush’s than not. Obama believes, in particular, that it is the president’s responsibility to act to the limits of his authority when Congress fails to legislate. In fact, he turned that approach into something of a bumper sticker last year, holding a series of events with the theme “We Can’t Wait.” Obama’s decision this year to end deportations of illegal immigrants brought to this country by their parents is probably the best expression of his view. As recently as last year, he seemed to believe that his administration had little room to act unilaterally on the issue, and he called on Congress to pass the Dream Act. This year, the president changed his tune completely.

It could be argued that Obama has regularly thwarted the will of Congress. The leading example may well be his decision to move ahead with a recess appointment of Richard Cordray as the head of the Consumer Financial Protection Bureau even though the Senate, which had not confirmed Cordray, technically remained in session. In Obama’s biggest showdown over separation-of-powers authority, the administration refused to turn over documents related to Rep. Darrell Issa’s “Fast and Furious” probe. And Obama refused to seek congressional approval in committing military support to toppling the Libyan regime. The president also drew the ire of Justice Samuel Alito and others on the Supreme Court by publicly criticizing the Court’s decision in the Citizens United campaign finance case.


Obama’s support of the Affordable Care Act, which nationalized regulation of the health insurance industry and mandated the establishment of insurance exchanges in every state, reflected his belief in the role of a strong federal overseer, as did his support of the Dodd-Frank financial-services regulatory bill and of cap-and-trade legislation to restrict greenhouse-gas emissions. Obama has also allowed states to opt out of the requirements of the No Child Left Behind Act as long as they agree to follow a set of administration guidelines—affirmation that the president believes in a leading federal role for education.

The president has been most aggressive in his use of executive power with regard to national security. Beyond his decision to commit American forces to Muammar el-Qaddafi’s downfall in Libya, Obama ramped up the war in Afghanistan and made the decision to violate Pakistan’s territorial sovereignty with the Osama bin Laden raid. The president has intensified use of drones to eliminate suspected terrorists not only there but also in Yemen and Somalia, and he has kept details of the program secret. For suspected terrorists in custody, he has perpetuated policies of indefinite detention and trials by military commission put in place by President Bush.




Obama has increasingly resorted to automated warfare and targeted killings.

In supporting the rebellion, the White House argued that the president wasn’t bound by the provisions of the War Powers Act.

The White House refused to comply with a congressional subpoena seeking documents connected to a probe of the Justice Department’s “Fast and Furious” operation, claiming executive privilege. A recent study by Bloomberg showed that the Obama administration is less responsive to requests under the Freedom of Information Act than the Bush administration was.

Obama told the Homeland Security Department to use “prosecutorial discretion” to stop deporting young illegal immigrants brought here by their parents even though they are in violation of federal law. 




Kathryn Ruemmler: The White House’s top lawyer, Ruemmler and her office vet the legality of all executive orders and appointments. According to The New York Times, she gave the go-ahead for Obama’s controversial recess appointment of Richard Cordray earlier this year.

Eric Holder: The attorney general has taken much of the heat for the “Fast and Furious” debacle and the decision not to comply with the congressional subpoena. Holder also drew criticism for Obama’s early intentions to close Guantánamo and to try Khalid Sheikh Mohammed in New York City.

Harold Koh: The former dean of the Yale Law School is top legal adviser to the State Department. Last year, Koh coauthored a report to Congress that concluded that Obama was not subject to the requirements of the War Powers Act with regard to intervention in Libya.

This article appears in the October 13, 2012 edition of National Journal Magazine.

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