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.

WASHINGTON - SEPTEMBER 11: (AFP OUT) U.S. President Barack Obama paints the wall during a service project at Ronald H Brown Middle School September 11 2010 in the Washington, DC. Obama attended an 9/11 anniversary memorial at the Pentagon earlier in the day.  
National Journal
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National Journal Staff
Oct. 3, 2013, 2:05 a.m.

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.

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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