This is the season of promises, so it might be worthwhile to remember that four years ago then-candidate Barack Obama frequently inveighed against what he viewed as the excesses of the Bush administration—particularly in the area of national security. If elected, the thinking went, Obama would restore some modesty to a White House that appeared at times to believe in few, if any, limits on executive authority. He would replace the fevered passion of wartime with cool restraint.
Obama succeeded President Bush all right—but one would be forgiven for not noticing much of a change in the way the chief executive does business. Like Bush, Obama clearly believes in an aggressive, expansionist view of presidential power, a stance that alarms some civil libertarians and constitutional scholars. And, like his predecessor, the president has not waited for Congress to act when the White House has some basis for moving unilaterally.
Obama out-and-out reversed his position on closing the prison for suspected terrorists at Guantánamo Bay, and he accelerated the nation’s antiterrorist drone program. But that’s not all. This is a president who, after all, committed American forces to undermine the Libyan regime absent any patina of congressional approval and who, earlier this year, instructed immigration authorities to simply ignore part of a federal statute that calls for the deportation of certain young illegal immigrants. It’s an administration that refused to comply with a congressional oversight investigation into a program that placed weapons in the hands of Mexican drug lords, and one that supported the federal takeover of the health insurance market as part of the Democrats’ Affordable Care Act.
The use—or abuse—of presidential power is often in the eye of the beholder. So, like the liberals before them last decade, conservatives howled at Obama’s moves. (In the case of the health care law, the backlash helped spark the rise of a political countermovement: the tea party.) But if Mitt Romney is elected next month, he is unlikely to usher in a new era of diminished executive authority. Indeed, there is little reason to believe that Romney’s approach to governing would be markedly different from Obama’s or Bush’s.
Romney has pledged to use the powers of the presidency aggressively to roll back tenets of the current administration, for instance by exempting states from the health care law and fast-tracking permits for oil and gas drilling. He supports the drone program—even to the point of endorsing its use to kill U.S. citizens overseas—and has expressed willingness to return to the kind of “enhanced interrogation” techniques for high-value suspected terrorists that were used during the Bush years and which Obama has banned.
In short, the name may change. But the attitude will remain.
“AN IMPERIAL PRESIDENCY”
Much as President Carter was viewed as the antidote to the diseased arrogance that pervaded the Nixon administration, Obama appeared committed to curtailing the panoptic reach of the executive branch under Bush. As a presidential candidate in 2007, the senator from Illinois criticized what he saw as the administration’s “unacceptable abuse of power.” And on his first day in office, in an effort to show that his critique was serious, he signed an executive order mandating the closure of the prison at Guantánamo.
That the Cuban prison is still operating today says it all. In a high-speed collision between Obama’s ideals and the practicalities involved in the battle against global terrorism, the need for security largely won. The administration made some reforms, for sure: Obama outlawed interrogation methods that critics assailed as torture, and he revised the procedures for military commission trials to incorporate greater due-process protections.
But congressional and public opposition to the administration’s intent to try Qaida operatives such as Khalid Sheikh Mohammed in domestic federal courts as well as transfer Gitmo prisoners to a facility in rural Illinois persuaded the White House to keep the status quo relatively intact. Obama also opened up new antiterrorism fronts. Even as the administration wound down efforts in Iraq, it intensified the U.S. military presence in Afghanistan—with debatable effectiveness. And it massively ramped up the use of unmanned aircraft to take out suspected terrorists (which has certainly helped cut down on new arrivals at Guantánamo).
“In many ways, Obama realized the dream of Richard Nixon in creating an imperial presidency,” says Jonathan Turley, a national-security expert at George Washington University Law School. “Some of the claims Obama has asserted would make Nixon blush in terms of the unchecked unilateral authority.”
It’s the drone program that has most dismayed many of Obama’s supporters on the left, particularly the strikes that killed radical cleric Anwar al-Awlaki and his 16-year-old son, among others, in Yemen last year. A leader of al-Qaida in the Arabian Peninsula, Awlaki was a highly pursued target who was implicated in the failed plot to blow up an airliner bound for Detroit on Christmas Day in 2009. But he and his son were also American citizens—and they were killed without charges, trial, or conviction.
The drone program operates in secret, with the president keeping a classified “kill list”; its targets become known only after they have been eliminated. By all accounts, drones have wiped scores of senior Qaida operatives off the face of the earth without using a single boot on the ground or a missile or bomb that risks greater collateral damage. But the program has resulted in collateral costs; the drones have killed some civilians (the exact number remains unclear), and protests in Pakistan, in particular, have been virulent.
The use of drones is just about Obama’s only action, however, that Romney hasn’t criticized.
As recently as Oct. 8, the Republican nominee reaffirmed his support for the program—and he told The New York Times last year that he, too, would extend its use to take out U.S. citizens deemed a threat. (Rep. Ron Paul was the only candidate in the GOP primary field who questioned the killing of Awlaki.)
Romney has also advocated a return to harsher interrogation tactics that Obama outlawed, telling a reporter last year that he does not believe “waterboarding”—the technique formerly used by the CIA that involves nearly drowning a suspect—is torture. And he has no desire to end the indefinite detention of suspected terrorists. “Some people have said we ought to close Guantánamo. My view is, we ought to double Guantánamo,” Romney said back in 2007, during his first campaign for president. “And enhanced interrogation techniques have to be used—not torture, but enhanced interrogation techniques, yes.”
The Obama administration has taken the same aggressive reading of the law of war as the Bush White House, arguing that the nation can act globally in self-defense to ward off an attack. A Romney administration would likely stay such a course. This doctrine, such as it is, may also apply to Romney’s pledge to launch a military strike against Iran if his administration believed that Tehran was close to developing a nuclear weapon—a strike that his White House might green-light without congressional sanction. There is recent precedent. Obama angered members of Congress last year by failing to seek authorization under the War Powers Act (passed in the 1970s to check presidential power) in lending U.S. support to the rebellion in Libya. By contrast, Bush sought a congressional resolution before engaging in hostilities in Afghanistan and Iraq.
“I don’t believe at this stage, therefore, if I’m president that we need to have a war-powers approval or special authorization for military force,” Romney said in June, referring to a strike on Iran. “The president has that capacity now.”
The Libyan intervention wasn’t the only area where Obama’s muscular use of executive power bothered Republicans. His administration flat-out ignored a request from Rep. Darrell Issa, the chairman of the House Oversight and Government Reform Committee, for internal e-mails related to the Justice Department’s “Fast and Furious” program, an effort to track the flow of automatic weapons across the Mexican border that went terribly awry.
Critics characterized Issa’s investigation as being politically motivated, but his committee clearly had jurisdiction for the request. The Obama White House invoked executive privilege, asserting that it wasn’t required to reveal internal deliberations about the failure of the program. Conservatives and liberals alike widely panned that parsing of the law. Some even called Obama’s act—there he is again—Nixonian.
“The congressional demand for documents was well within the authority of the committee,” Turley said.
Obama’s White House also seemed to venture into uncharted legal waters with its recess appointment of Richard Cordray to head the new Consumer Financial Protection Bureau. Senate Republicans had stalled Cordray’s nomination, but the administration argued that Obama could install him even though the Senate, technically, remained in pro forma session.
While Republican senators ended up not filing suit over Cordray, the Republican-controlled House did step in when the White House directed the Justice Department to stop defending the constitutionality of the Defense of Marriage Act, another unilateral action that rankled Obama’s critics. The House ended up assuming DOMA’s defense in federal court.
The White House invoked executive privilege, saying it wasn’t required to reveal internal deliberations about “Fast and Furious.”
In a way, the White House’s decision not to defend DOMA paved the way for another aggressive action it took earlier this year, ordering the Immigration and Customs Enforcement agency to cease deporting young illegal immigrants who were brought to the U.S. by their parents. After Congress failed to pass the Dream Act, which would have given these immigrants legal status, the administration said it was exercising “prosecutorial discretion.” But critics claimed that the executive branch was simply refusing to enforce a law in violation of its constitutionally prescribed duties.
Obama, in fact, had lamented his inability to enact provisions of the legislation on his own just a year earlier, according to the McClatchy News Service. “Sometimes when I talk to immigration advocates, they wish I could just bypass Congress and change the law myself,” Obama said at a Texas event in May 2011. “But that’s not how a democracy works.”
Maybe so, but Obama’s White House also bypassed Congress in granting waivers to states exempting them from the onerous requirements of the No Child Left Behind Act. By this summer, more than half the states had secured waivers after promising to follow a set of federal conditions aimed at improving student performance. The executive branch issued the waivers even as Congress failed to reauthorize the law.
That didn’t keep Republicans from criticizing the move. Rep. John Kline of Minnesota, who chairs the House Education and the Workforce Committee, contended that the administration was using the waivers “in exchange for states adopting the policies he wants them to have.”
The Obama administration also grew impatient after Congress failed to pass a bill in 2009 that would limit greenhouse-gas emissions. His Environmental Protection Agency then promulgated rules that slapped severe limits on coal-fired power plants, raising the ire of Republicans and energy-industry executives, who warned that the rules would sound a death knell for coal in the United States. It was another example, they said, of Obama accomplishing through fiat what he could not through the legislative process.
ROMNEY’S “DAY ONE”
For his part, Romney wants to follow the same path in regard to another unpopular law: the Democratic health care overhaul known as “Obamacare.” Repeatedly, the former governor has said he will issue waivers exempting states from the law’s requirements on “day one.” That and other orders Romney plans to issue show a view of executive power that is consistent with Bush’s and Obama’s.
With the legality of the health care law no longer in doubt, Romney wants to issue waivers that “return the maximum possible authority to the states” to develop their own regimes independent of the federal program. But Timothy Jost, a health care expert at the Washington and Lee University School of Law, says that no authority exists for a Romney White House to allow states to simply “opt out.”
“There is no such thing,” Jost said.
Instead, “innovation waivers” in the law allow a state that has established its own health care program to use it in favor of the federal one. But, Jost said, those waivers don’t kick in until 2017, after Romney’s four-year term would have ended. Moreover, any state seeking such an exemption would have to show that it can cover as many of its residents as the federal law does.
Other health care law experts, however, believe that Romney could use executive power to gum up the works one way or another—perhaps buying time for a full repeal. “I think he could do a lot to slow it down,” said James Capretta, a fellow with the Ethics and Public Policy Center in Washington.
Specifically, a Romney White House could exploit a loophole in the law that has left unfunded federal insurance exchanges that would be set up in states that refuse to establish their own. “If Governor Romney were to win, he’s not going to ask for that [money],” Capretta said, adding, “Nobody gets arrested if the law doesn’t get implemented because no administrative structure is set up in time.”
Even so, the only feasible way to block full-scale implementation of the law is through repeal or amendment. Until that happens, Romney’s “obligation as president is to execute the laws,” Jost said.
Romney has also vowed, on his first day, to get tough with China by issuing an executive order directing the Treasury Department to declare the Asian superpower a “currency manipulator” under federal law and, in turn, ordering the Commerce Department to place tariffs on Chinese imports if Beijing fails to move to float the yuan. That plan also has some problems, according to Scott Lincicome, an expert in international trade with the law firm White & Case.
Treasury, in consultation with the International Monetary Fund, releases a report on currency manipulation every six months. A day-one order from Romney would force the department to put out a report “at a completely inappropriate time,” Lincicome said, and result in “a really serious diplomatic problem” because the declaration would appear premeditated and not the result of a legitimate fact-finding. “It would basically make a sham of the process,” he said, and would undermine the new administration’s credibility even as it attempts to assert itself on the world stage. (The wisdom of launching a trade war with China is another matter.)
Romney has broadly said he wants to revamp the federal regulatory scheme. He has promised to issue an executive order that would prohibit the executive branch from issuing a new regulation until it performs a cost-benefit analysis and identifies another regulation equal in “cost” to eliminate, so as not to “add” to the overall regulatory burden. Moreover, Romney wants to require that major regulatory changes, such as new mileage standards for automobiles or restrictions on coal-fired power plants, be contingent on congressional approval—making the chances of enacting big changes in the current legislative environment shaky at best.
The problem, said Richard Murphy, an administrative law expert at the Texas Tech University School of Law, is that Romney’s plan is probably illegal because it would eliminate all rule-making discretion from the executive branch. It would also be difficult to apply. “What’s it worth to have clean air over the Grand Canyon?” Murphy asked rhetorically.
As part of Romney’s plan to overhaul the regulatory process, he would seek to allow states to tap oil and gas resources on federal land, while speeding up the permitting process for private land. State permitting processes would be deemed to be an acceptable substitute for Interior Department review.
For a President Romney, the temptation to use executive power in place of congressional inaction is likely to be as attractive as it has been to Obama. No matter which candidate wins the election, he’ll be faced with a divided Congress and a Senate filibuster at the ready. So the same complaints that arose under Bush and returned under Obama would likely resurface under Romney.
The modern presidency seems to grow inexorably larger over time—and, so far, even topsy-turvy election results haven’t deterred its expansion. You could argue that Bush administration policies helped spark the Democratic wave of 2006 and Obama’s victory in 2008, just as you could argue that Obama’s views on federal power helped to prompt the Republican push-back of 2010. Romney plans to run the government like he would a business, with himself as chief executive officer. Bush had much the same intention—and his administration pushed executive power to the limit. That’s the thing about executives—and presidents, for that matter: They hate being told what they can’t do.
This story appeared in the print edition of National Journal under the headline "A President’s Power."
This article appears in the October 13, 2012 edition of National Journal Magazine.