A Question of Power: The Robust Presidency

Depending on the day and audience, President Barack Obama has been called many things, only some of which are fit to print: Wall Street stooge, Main Street sellout, foreign policy novice, socialist. One consistent strain of criticism, however, draws on the theme of executive overreach or, less politely, tyranny. And it is this line of criticism I want to explore here, if only to sketch out a limited defense of Obama’s repeated efforts to exercise power in a system of government that does so much to privilege the status quo. 

After spending much of his first term in office courting Republican support within Congress, Obama has consigned himself during his second term to some basic facts about contemporary politics: legislative support resides nearly exclusively among co-partisans; rather than softening partisan cleavages, soaring rhetoric about transformational politics will do as much to harden opposition; and the most prevalent opportunities for advancing policy change come not from working with Congress but from working around it.

It comes as little surprise, then, that Obama is fashioning a policy record made of executive orders and other unilateral directives that, by turn, increase the minimum wage for employees of federal contractors, alter overtime pay requirements for workers nationwide, strengthen the oversight of gun purchases, expand environmental regulations, reconfigure domestic and international spying practices, initiate strikes against suspected terrorists abroad, draw down the U.S. military presence in Afghanistan and much more. As announced in his State of the Union speech earlier this year, Obama would no longer wait for Congress to legislate on pressing domestic and international policy matters. Consciously eschewing the “stale political arguments” and “gridlock” that pervade Washington, the president repeatedly signaled his intention to act on his own. 

Before he even finished speaking, Republicans began casting Obama as a grave threat to the constitutional order. On the morning of the speech, Sen. Ted Cruz, a Republican from Texas and darling of the Tea Party movement, took to the pages of The Wall Street Journal to accuse the president of “(disregarding) the written law.” Cruz declared that the “pattern of lawlessness” exhibited by the Obama administration threatened to transform America from a nation ruled by law to one ruled by men. And not just any group of men, but one man: Obama. 

Cruz was not the only Republican to take issue with Obama’s embrace of executive power. Rep. Randy Weber of Texas tweeted from the floor of the speech that Obama was a “socialist dictator.” The next day, former Republican Pennsylvania senator and past presidential candidate Rick Santorum said that Obama’s speech was “what tyrants are made of.” Conservative pundits enthusiastically concurred. The so-called imperial presidency, which had once so frightened Democrats, now stood in full view of Republicans. 

Much of this talk, to be sure, can be chalked up to the everyday posturing of contemporary politics, which are long on magniloquence and short on reason. For as sure as politicians will pander to our baser instincts, Republicans and Democrats will each whip up a thick froth of indignation over what they perceive as gross abuses of the Constitution wrought by a sitting president of the opposite party. Though Republicans may be the ones making hay today, under the George W. Bush administration Democrats read abuse into nearly every exercise of presidential power.

The partisan undertones of these arguments may not be intellectually serious, but that does not mean the arguments themselves do not warrant serious intellectual consideration. The American presidency, like our system of checks and powers more generally, remains very much a work in progress. The precise meaning of “executive power” has always been contested. To make sense of our politics and the president’s role within them, then, we would do well to look upon them if not from 30,000 feet, then at least above the cacophony of today’s headlines. And when we do, some basic patterns emerge that clarify why presidents behave as they do – and how we, the American public, are complicit in the matter.

Two facts go a long distance toward explaining the president’s relationship with – and persistent longing for – power. The first points to the Constitution. The second implicates Americans themselves.

If not an empty cupboard, Article II of the Constitution offers a rather paltry food supply to a president seeking sustenance in today’s politics. Formally, the president can veto legislation, although his veto is subject to congressional override. He can appoint bureaucrats and judges, although these powers too are subject to the Senate’s advice and consent. He can receive foreign dignitaries, a power that was largely ceremonial in conception. And he is the commander in chief, a position that was primarily administrative.  

When it comes to unambiguous conferrals of influence, that is about it. The founders may have created a system of separated branches, each independent of the others. Such branches, however, were decidedly not coequal. To the contrary, Congress was understood to be the first branch of government, and many of the powers granted to the president – e.g., the veto – were meant to guard against legislative encroachment. 

On their own, these basic facts about the Constitution are not especially problematic. The trouble emerges when the spindly Article II sits as backdrop against the extraordinary demands and expectations the American people place upon their presidents. These demands and expectations, to be sure, have evolved over time. Nearly all the trend lines, though, point upward and outward, so that today it is difficult to even conceive of a subject of legitimate government action on which the president can punt. 

We expect our presidents to assign meaning to our tragedies, direct water to our droughts, stand up to Russian aggression while ensuring the sanctity of international markets, contain terrorist threats while preserving our civil liberties, advance tough standards of accountability in our schools, reduce our crime, allay the ravages of urban poverty and so much more besides. There simply is no dimension of public life about which the president can claim neither an opinion nor responsibility.  

Given the standards to which we hold presidents and the inadequacy of the enumerated powers granted them, it should not come as a great surprise that presidents – all presidents – work doggedly to preserve what statutory authority is delegated to them, read broadly into the vague constitutional provisions, manufacture new tools of influence and expand, whenever possible, the influence they wield over domestic and foreign policy. They must. To do otherwise is to invite nearly universal reprobation.

There may be political costs to those presidents who overreach. The greatest blows dealt, however, occur when presidents do not vigorously and publicly advance the nation’s interests. To do anything less, particularly during times of crisis, is to court disaster – as Bush, the flyover president, learned in the aftermath of Hurricane Katrina; and as Obama, the flaccid intellectual, learned during the showdown over the debt ceiling in the summer of 2011. In such moments, presidents appear distinctly unpresidential.

Presidents do not pursue power out of vainglory  (though vainglorious they may be). They do so to satisfy us, by whom I mean the contemporary public that holds them and their parties in continual judgment, and the historians who discern and eventually define their legacies. Both constituencies demand action – forthright, public and unapologetic. Those presidents who act are those who fulfill the obligations of their office. Whether their actions and accomplishments are sufficiently prudent, sensitive to the Constitution or statutory limitation, or in line with public sentiment, remain in our politics matters of secondary importance.

If we are troubled by the bold exercise of presidential power, it will not do to beseech the president to change his ways while simultaneously holding him to such outsized expectations. We would do better, if we are serious about the matter, to demand that the adjoining branches of government – namely, Congress and the courts – curtail the power options available for presidents. More foundationally still, we should scale back the demands we so profligately deposit at the feet of our president.

When it comes to power, the dominant trends across presidential administrations are ones of continuity rather than change. The ideological commitments of Bush and Obama differ radically. But when it comes to power, they – like so many of their predecessors – are of a piece.

Seeing one of their own assume the presidency in 2009, constitutional law scholars and liberal Whigs anticipated that Obama would restore some semblance of balance to our national politics.  Such hopes, though, proved to be misplaced.  Rather than temper the use of presidential power, he has worked hard to extend it.  

Like Bush, Obama has steadfastly defended his executive privileges, just as he has staunchly guarded private information about all matter of foreign policy matters. Through unilateral directives, he has successively escalated and de-escalated two major wars abroad. Only in light of the scrutiny caused by the Edward Snowden leaks has he pledged any meaningful curtailment of the national security state. In the aftermath of legislative setbacks, Obama has used all sorts of executive orders on both domestic and foreign policy matters. He continues to rely on executive agreements, which do not formally require Senate ratification, in lieu of treaties, which do.

In many ways, then, Obama picked up where Bush left off. His policy objectives differ dramatically from his predecessor’s. But the project of building, protecting and expanding executive power is much the same.

Nonetheless, to the ongoing project of presidential expansion, Obama proffers innovations of his own. Some, such as the transformation of modern warmaking through drones, have received a fair measure of public attention. One of the most striking, however, has been hiding in plain sight: the president’s efforts to rewrite major education policy through waivers and administrative fiat.

Obligations over education policy are enshrined in state constitutions, not the federal Constitution. Some of the most striking policy developments of the last half-century, however, have come at the behest of the national government. Tracing back to the original Elementary and Secondary Education Act (ESEA) of 1965 and following on with the creation of a federal Department of Education under the Carter administration, the federal government generally, and the American president in particular, has sought to influence the ways in which children learn around the country.

Such developments came to a head under the George W. Bush administration. Indeed, arguably the single most important domestic policy achievement of his presidency was the 2002 enactment of No Child Left Behind (NCLB). With this law, the federal government helped propagate new systems of accountability, ones that set clear benchmarks for student learning and consequences for schools and districts that failed to meet them.

In 2007, NCLB was first up for reauthorization.  Seven years later, it remains so. And in the interim, Congress has done nothing to rectify the most glaring faults of this legislation.

Rather than wait on Congress to fix NCLB, Obama has begun to offer waivers to individual states. Although NCLB remains on the books, he has told states they are free to ignore its most onerous provisions. But he doesn’t stop there. The provision of waivers is conditional upon each state’s willingness to take up alternative education policies endorsed by the administration – policies, it should be noted, that differ from the contents of NCLB and that most likely would not withstand the legislative process in Congress.

As a general matter, legislation has always trumped unilateral and administrative directives emanating from the president. Executive orders and the like, as a result, have traditionally had to operate in the gaps between legislative pronouncements. But no longer when it comes to federal education policy. Through waivers, Obama is effectively remaking federal law, at once dismantling his predecessor’s signature policy achievement and codifying in law his own education policy. Rather than working around Congress’ handiwork, then, the president is refashioning it entirely on his own.

What is to be done about this state of affairs? Is ours now a tyrannical presidency, one wholly unaccountable to the people and undaunted by legal or constitutional restraint? And if so, do we have a responsibility to put the president back into the narrow confines established by a narrow reading of Article II powers?

On questions as complex as these, reasonable people can differ. My own view is that the modern presidents are not the bogeymen so many make them out to be. Two reasons help explain why.  

First, ample checks remain on the exercise of presidential power. At nearly every turn, presidents confront impediments to their agenda. In Congress, the courts, the administrative state and the larger populace, presidents run up against organized and vocal opponents who work assiduously to undermine their influence. Confer with a former adviser of the president, and she will regale you with tales of heartache and frustration as her boss sought to implement even the most common-sense policy reforms.

The second reason I am not especially keen on reducing the president’s power concerns the alternatives on offer. If not the president, then which branch of government can we reliably turn to address the kinds of deep, trenchant, complex national problems we face? With Congress mired in gridlock and the courts institutionally incapable of engaging the minutiae of policy debates, presidents alone offer the kind of leadership needed to address the challenges of climate change, the debt, entitlement reform, and on and on. As the Progressives recognized a century ago, the institutional capacity of the government to solve social problems critically depends on a robust American presidency.

In debates about presidential power, originalist understandings of the Constitution have their place. But so do pragmatic concerns about the capacity of our government to meet contemporary challenges. For the national perspective he offers, the longer time horizon he maintains, and the unique capacity to act with “energy and dispatch,” as Alexander Hamilton recognized so long ago, we ought not to shout “tyranny” every time a president uses his powers toward ends we may not share. Presidents who behave this way are not tyrants. Far from it. Rather, in line with their predecessors, they are doing their best in an impossible situation – expected at once to solve massive and complex problems while brandishing constitutional powers fashioned in a bygone era of agrarian farmers, limited government and international isolationism.  

William Howell is the Sydney Stein Professor in American Politics at the University of Chicago. He is the author, most recently, of “Thinking About the Presidency: The Primacy of Power” (Princeton University Press) and co-author with Saul Jackman and Jon Rogowski of “The Wartime President: Executive Influence and the Nationalizing Politics of Threat” (University of Chicago Press).