Much has rightly been made of President Obama’s promise to bypass Congress and act unilaterally to get things done. “I’ve got a pen and I’ve got a phone,” he said, threatening to sign more executive orders and blast more messages from his bully pulpit.
Since then, defenders have argued that Obama has signed relatively few executive orders compared with other modern presidents. But all executive orders are not equal and simply adding them up misses the point. Obama has developed a bold and consistent pattern of unilateral action to set his agenda, advance it and change it, well beyond any reasonable understanding of the Constitution’s separation of powers doctrine.
First, one should note that presidential overreach is not limited to executive orders. For example, President Obama has appointed more czars—officials with power similar to cabinet officers but not requiring Senate confirmation—than any president, somewhere around 38 depending on how you count them. He’s empowered car czars, green job czars, Middle East policy czars and my personal favorite, the Asian carp czar. All these are unelected and unconfirmed senior White House officials with considerable power. And don’t forget those so-called recess appointments that sought to avoid Senate confirmation. The Supreme Court hasn’t, since they are likely to strike them down for having been done when there was obviously no recess.
He has defined his role as commander in chief in a breathtakingly powerful and detailed manner. For example, he committed the United States to war with Libya without Congressional authorization, an action that both allies and critics agree exceeded proper presidential power. He has claimed authority to target individual enemies for death by drone, including some American citizens located overseas. I’m sorry but the last time I checked, the death penalty for U.S. citizens was reserved to the judicial branch.
Similarly, the administration has been active in using waivers and regulations to reshape the law to its liking. Most obvious, though little discussed, the Department of Education has issued so many waivers to states that the No Child Left Behind Act is barely recognizable. The Environmental Protection Agency has launched an attack on the coal industry, unilaterally declaring their carbon emissions pollutants and potentially shutting down hundreds of their plants as part of its campaign against climate change.
But even in the realm of executive orders, Obama has managed to make a significant mark. Executive orders, as their name implies, are for the executive branch to carry out, literally to “execute,” a bill passed into law. They follow on and implement laws passed by Congress. But Obama has changed all of that, instead using executive orders on offense, to trigger a set of policy changes he wants but fears Congress won’t enact. He is not “executing” laws, he is making them.
For example, frustrated by the inability of Congress to pass immigration reform, Obama kicked off his own set of reforms by executive order, halting the legal deportation of thousands of immigrants in the U.S. illegally. Similarly, Obama launched his campaign to increase the minimum wage by unilaterally ordering an increase for all federal contractors. Congress won’t pass gun control? No problem, as Obama signed 23 executive orders on gun control, a couple of recent ones setting up possible confiscation of guns using the Affordable Care Act. That takes some doing.
And speaking of the Affordable Care Act, Obama has found yet another use for executive orders: changing and amending his own laws. For awhile it seemed like every week brought yet another unilateral presidential amendment to Obamacare. Don’t like the mandate on small companies? Fine, we’ll just postpone it. How about the requirements on big companies? Fine, we can ease those too. In all, the president has issued 22 modifications or delays of his signature legislation.
The president seems to think it’s something of a joke, telling visiting French president Francois Hollande recently, “that’s the good thing about being president, I can do anything I want.” But that giant tearing sound you hear is the separation of powers established by the Constitution.
