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The Do-It-Yourself Presidency

If you’re judging President Obama based on what he’s failed to do, you’re missing the point. He’s one of the most powerful chief executives in U.S. history.

(Olivier Douliery-Pool/Getty Images)

October 3, 2013

After 20 children were gunned down at a Connecticut elementary school, President Obama pledged swift action to curtail mass shootings. And, after reportssurfaced that Bashar al-Assad had gassed his own people, the president vowed swift retaliation. And finally, after Republicans threatened to shutter the government over health care, Obama warned that "one faction of one party in one house of Congress in one branch of government doesn't get to shut down the entire government just to refight the results of an election."

There are as many AR-15s on the street today as there ever were, no Syrian targets have felt the brunt of an American missile, and the federal government has closed down for the first time in 17 years. So you would be forgiven for believing, as many do, that Barack Obama is a weak, ineffectual, even impotent leader. But move past the banner headlines and you'll see that Obama, by force of will and wielding of pen, is on track to be recorded as one of the most powerful presidents the country has known.

Full stop. No caveat is coming here. On the biggest, most significant issues affecting America and its place among global powers, this White House has aggressively forced its agenda from concept to implementation—ignoring congressional opposition—by assuming powers and authorities that previous administrations have only dreamt of invoking.

 

This aggressiveness is perhaps most clearly seen in national security, where Obama's embrace of government surveillance and a death-by-drone program ballooned beyond all known bounds despite a jaw-dropping lack of evidence against hundreds of the targets, Americans included. But he hasn't stopped there.

On immigration, Obama unilaterally granted to undocumented children brought here illegally by their parents the right to stay, study, and work. After Congress refused to act.

On climate, he has single-handedly choreographed the demise of the industry that spews the most greenhouse gas into the air. After Republicans said, no.

Even on health care and guns, the two most controversial and politically divisive issues of his presidency, Obama has used his executive authority to put into practice policies that Congress has specifically and emphatically declined to endorse.

"I don't think you can argue that the Congress is a coequal branch of government anymore," said Lee Hamilton, a former House Democrat whose work on multiple bipartisan panels puts him among the leading voices of governing and policy. "Power is now driving to the executive. It's a worrisome trend. How far down this road of increasing presidential power can you go and still have a representative democracy?"

Obama's supporters say he didn't want to do this, but Congress's refusal to negotiate on any issues—from housing reform and student loans to government funding and the debt limit—forced him into a do-it-yourself presidency. "It's gotten so bad that the president feels compelled to act with executive authority, and is doing so without compunction," said Paul Bledsoe, a former Clinton White House climate adviser and now a senior fellow on energy and climate at the German Marshall Fund. "In the first term he did so with reluctance. Now he's embracing it."

Current and former Obama aides offer evidence that this president, the former constitutional law professor, would have preferred a more cooperative Congress similar to the one he had during his first two years in office. It was the chief executive himself, according to White House aides, who came up with the "We Can't Wait" phrase to talk (in an election year) about all the things Republicans were refusing to advance on Capitol Hill. This summer, in fact, Obama defended unilateral action on implementing the health care law by saying: "Where Congress is unwilling to act, I will take whatever administrative steps that I can in order to do right by the American people."

Certainly, Obama is not the first president to take the powers he wanted and the actions he determined necessary when Congress refused to act. Indeed, every president for the last 30 years has used the regulatory rule-making process, executive orders, or signing statements to craft policies that ran counter to congressional intent. Some have gone too far, abusing their authority—recall Franklin Delano Roosevelt, who interned American citizens of Japanese descent; George W. Bush, who authorized U.S. agents to torture prisoners, violating the Geneva Conventions; Richard Nixon, who … well, you know.

But at no time, perhaps since the years after the Civil War, has a president faced a Congress so divided and unwilling to do anything on substantive policy issues. And at no time, perhaps since FDR, has a Congress faced a president so willing to do it himself.

ASKING PERMISSION

While Obama has of late liberally employed the power of his office, he didn't always start from a place of assumed authority. His opening gambit typically was a request to lawmakers.

On climate change, for example, he gamely tried to push a "cap-and-trade" bill through Congress. The bill, which would have forced industrial polluters—chiefly coal-fired power plants—to buy government-issued permits to pollute, passed the House in 2009 (then run by Democrats) but crashed in the Senate. In the wake of its failure, Republicans, the coal industry, and tea-party groups turned the phrase "cap-and-trade" into a toxic political weapon, attacking Obama and congressional Democrats for trying to slap an energy tax on Americans. After Republicans took over the House in 2010, it was clear any further efforts to pass global-warming legislation were doomed.

So, at the beginning of his second term, Obama told Congress he planned to take climate change into his own hands, warning: "If Congress won't act soon to protect future generations, I will."

And he is. Obama this year bypassed Congress by announcing a series of regulations that will freeze construction of new coal-fired power plants—the nation's biggest source of greenhouse-gas emissions—and, eventually lead to the closure of existing coal plants. The rules are unprecedented in their scope, ambition, and potential economic and environmental impact. They are also unwieldy, politically controversial, and legally vulnerable. Privately, White House officials concede that using the executive authority of EPA regulations was the last, least-popular policy option for pursuing a climate-change agenda. But, in the end, they say it was the only choice Obama had left.

His route was similar on immigration. In fact, before the president took reform into his own hands, he spent two years saying he couldn't do what he was about to do. Since Obama was elected in 2008, advocates have insisted that the administration has tremendous flexibility under the immigration law, particularly in terms of deportations. They say that the president can, without consulting Congress, decide where his enforcement priorities are. He can go as far as saying that the United States will not, under any circumstances, deport certain types of people. He can relax asylum and waiver laws. In short, he can make undocumented immigrants' lives easy or hard with the stroke of a pen.

Publicly, Obama denied this. "This notion that somehow I can just change the laws unilaterally is not true," he told a Hispanic roundtable in 2011. He and his top aides repeatedly blamed congressional Republicans for walking away from the problem.

But in June 2012, Obama stepped out on his own. He stated he would not deport young undocumented foreigners who were brought to the United States by their parents. Today, the Homeland Security Department has approved more than 430,000 applications from those children of illegal immigrants. They are not citizens, nor do they have the chance to become citizens under the program, but they are free to get jobs or driver's licenses, go to college, or join the military. In short, they can behave like any other typical American.

Immigration groups are pushing Obama to expand the program even further, to include all 11 million undocumented immigrants who have not committed crimes. Obama insists he doesn't have the legal authority to do so, but he made the same argument two years ago right before he deferred deportations for young people. The retaliatory forces have not come raining down on him because of it.

By the time Obama got to guns, he had some experience with recalcitrant Republicans and wouldn't wait as long to respond to congressional inaction. In the wake of the horrifying shooting at Sandy Hook Elementary School, Obama asked Congress for many things, none of which he would receive. That included universal background checks, limits on high-capacity ammunition, an assault-weapons ban, and increased criminal penalties for people who buy guns legally to sell on the black market. 

So the president put in motion a host of administrative actions throughout the year that don't require lawmakers' approval. One was a memorandum in January laying out the Justice Department's path toward improving the information in the national database that firearms sellers use when conducting background checks. Most recently, Obama banned a practice in which military-style weapons that were sold to foreign countries could be reimported to the United States. None of the executive actions alone can match the power of expanding background checks. But taken together, they are a big step toward a more regulated firearm environment, something that gun owners will chafe at.

TAKING LIBERTIES

Obama's tactics on other issues differed, but the result was a no less dramatic exercise of presidential power. On health care, a desire to protect his signature domestic achievement from Republican attack meant the president has largely avoided seeking approval from Congress on changes, adjustments, or fixes needed during implementation. Instead, when the administration has sought changes to the ever-controversial Affordable Care Act, it has gone ahead and made them—all by itself.

Perhaps most contentious of the tweaks, delays, and changes over the past three years was the White House's decision in July to delay by one year the law's requirement that large businesses provide health coverage to their employees. Obama cited the business community's concerns over compliance with the provision in time for its Jan. 1 effective date. While the change aligned with the GOP's aim to delay Obamacare, Republicans feigned fury that the administration had the nerve to announce its decision in a Treasury Department blog post and questioned whether the president had the authority to make that move without lawmakers' approval. The administration did it again in September, delaying small businesses' online enrollment until November.

The Congressional Research Service recently compiled a list of the administrative delays—undertaken without congressional involvement—in Affordable Care Act implementation. It came up with seven, including the employer mandate.

Obama's decision to sidestep the legislative process in implementing health reforms is practical, said Timothy Jost, a law professor at Washington and Lee University. In the face of repeated congressional attempts to defund the program and force the program's managers to testify before lawmakers, it's also just triage, he said.

A federal court has already ruled invalid the president's tactics in another area where Congress refused to act. In 2012, during the Senate holiday break, Obama appointed three members to the then-paralyzed National Labor Relations Board, bypassing GOP attempts to block them. The Court of Appeals for the D.C. Circuit declared the appointments unconstitutional. The Supreme Court is to hear the case during this upcoming term. The justices have stepped in before in recent cases of presidential overreach, most notably when George W. Bush attempted to establish military tribunals to try terrorism suspects without congressional authorization.

WILLFUL AVOIDANCE

It is in the national security arena where this president—like his predecessor—has so broadly interpreted wartime authority that his team has been ordered to create guidelines aimed in no small part at restricting future presidents' use of the authorities Obama has snatched for himself.

The shift in decision-making on security and defense issues from Congress to the Oval Office did not start with Obama; it has been steadily advancing for decades. But Obama's conclusion that he could so drastically expand the scope of a program that kills people at will, including Americans overseas, under a process that remains secret is unprecedented.

As with other power grabs, members of Obama's inner circle cast his national security decisions as an effort to discreetly get the job done, with the best tools available. Tommy Vietor, a former National Security Council spokesman, blames the inertia of government—a massive and complex national security apparatus—for making it difficult for the president to implement what Obama says is a personal desire for more transparency.

But Obama and his advisers appear to know they have pushed too far. Indeed, that is why they are creating what people in national security call the "playbook," which secretly details how the administration approaches operations to capture or use lethal force against terrorist targets outside the U.S. "We needed to codify certain practices and procedures to constrain this president or any president that came after … to try to further limit the use of certain kinetic tools, so they were only used as a last resort," Vietor said.

It is also why, in May, Obama called for Congress to narrow—and ultimately repeal—the 12-year-old Authorization for Use of Military Force, which was passed after the Sept. 11, 2001, attacks to target terrorists and is still used today to justify military action well beyond Afghanistan. The president believes the sweeping provision encourages perpetual war and grants the White House too much power. Not only was Obama criticized by hawkish Republican senators, including John McCain and Kelly Ayotte, but legislative efforts to act on this front, notably by Democratic Rep. Adam Schiff of California, were blocked in the House the following month.

Similarly, Obama has assumed more power than he's willing to allow future commanders in chief in his continued use of Guantanamo Bay. He has kept the military prison there open, despite his promise to close it, but has not added another detainee to the prison; the handful of accused terrorists the administration has been able to capture have entered the criminal-justice system for prosecution. "When Obama talked about the indefinite detention policy, he said, 'I'm not comfortable with this, I'm not comfortable with how these powers could be used by presidents who come after me,' " said Daniel Klaidman, author of Kill or Capture on Obama's war on terrorism. "I think he was comfortable with his own ability to handle a policy like that responsibly, but he didn't feel comfortable with how a future president would."

That's the opposite of how many presidents think about presidential power, according to Klaidman, who said previous administrations considered it their institutional obligation to not only maintain the powers of the presidency but increase those powers as well.

MORNING-AFTER REGRET

Indeed, there is some evidence that Obama regrets how far he has taken his do-it-yourself presidency. This is perhaps no better illustrated than in his handling of the near-crisis with Syria. Obama insinuated publicly that he had the authority to launch a strike meant to punish the government in Damascus for using chemical weapons against its own people. And, in fact, after decades of Congress abdicating such power to the White House on matters of war and peace, he likely did. (It was certainly a course of action he followed with the U.S. intervention in Libya.) But then Obama backpedaled, asking for the support of the American people as expressed by a vote in Congress. "He's a former constitutional lawyer; he understands precedents pretty well," Klaidman says.

But barring more coming-to-the-Constitution moments for Barack Obama, there is little anyone, including members of Congress, can do to pull back the authority this president has assumed for himself. And those members do indeed find it infuriating.

"Between elections he has made himself a dictator," said Rep. Darrell Issa, R-Calif., one of this administration's chief foes in Congress. "I'm using that term deliberately. He's ignoring the laws and doing what he wants to do." The chairman of the House Oversight Committee had damning commentary, as is his wont, even comparing an executive order that Obama signed on immigration to the death march forced on Cherokees by Andrew Jackson. "It's very similar to murdering Indians on the Trail of Tears," Issa said. "It's maybe less fatal. But you do have gang members, 18 to 31, who now have work permits rather than a ticket home."

Anger and blatant hyperbole is all Issa and other indignant lawmakers have to work with, though.

On immigration, Republicans have ferociously protested the program that allows children of illegal immigrants to stay in the country, calling it proof that they cannot trust Obama in any kind of negotiation. "Why do you think you can do business with a man who has consistently proven that he will defy his own oath of office?" asked Rep. Steve King, R-Iowa, a staunch opponent of legalizing people without papers, in an interview.

On climate, Republicans are trying to turn the rules into political fodder with a barrage of new ads attacking Obama—and by extension, Democratic congressional candidates—for waging a "war on coal." Yet there's not much Congress can do to stop the policy from moving forward. Members' main hope is that polluting industries can find loopholes in the rules, but administration lawyers are working to guard against that.

"The administration is getting better at this," said Bledsoe, the former Clinton adviser. "Their legacy on climate and other issues is going to be tied to their abilities on rule-making and the ability to withstand legal challenges, which is very different from persuading members of Congress to vote for a bill."

Now, with the government shuttered and little hope that kamikaze conservatives who appear to control House Speaker John Boehner will ever agree to a debt-ceiling increase, a growing number of people (from President Clinton to Wall Street worriers) think it's time for Obama to act unilaterally one more time. The White House has said repeatedly that it would not lift the borrowing cap on its own, as some suggest the 14th Amendment allows. But time and again this president has taken matters into his own hands. And those issues, arguably every one of them, were less important than protecting the full faith and credit of the United States of America. 

Should the president go ahead and do so, he'll hear cries about a power grab that may dwarf anything that has come before.

This story was reported by Coral Davenport, Catherine Hollander, Fawn Johnson, Sara Sorcher, and Ben Terris, and was written by Kristin Roberts.

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