Obama's Pattern of Overreach on Executive Power

Obama's Pattern of Overreach on Executive Power

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Since Republicans took control of the House in the 2010 midterms, Obama has relied more and more on assertions of executive authority rather than pursuing the strategy Bill Clinton adopted in 1995, working with the new majority and claiming ownership of their agenda.  He has run roughshod over precedent to make recess appointments for unpopular appointments even while the Senate remained in session, which has snared an NLRB decision in federal court.  The HHS contraception mandate threatens to rewrite the First Amendment and put the federal government in the position of essentially licensing religious expression. 

This month, Obama unilaterally decided to selectively enforce immigration law rather than work with Congress to change it, opening a temporary window for illegal immigrants to step forward and join the same workforce where Americans already struggle to find jobs.  That also got a positive response from Obama’s supporters, but will it actually work?  Greta Van Susteren wrote that anyone who qualifies for this “prosecutorial discretion” would have to be crazy to volunteer for it:

“To get that work permit, the person here illegally would have to admit being here illegally (why else would the person need a work permit?) and provide all sorts of personal info (e.g. where to find the person!) In other words, the person would be putting a big target on his or her back for ICE deportation in two years when the program expires (if not extended.)  …Or, perhaps sooner if Governor Romney is elected and he decides to cancel the temporary program? Answer: no one.”

Whether or not Obama is extending presidential power past its limits, American voters like assertions of executive authority.  We like strong leadership, especially in the face of an eternally-squabbling Congress.  There is a certain charm to a chief executive who decides that the best – or only – solution to the Gordian Knot of partisan gridlock is to prorogue the legislative branch, figuratively speaking, and take matters into his own hands.  Nor is that a phenomenon particular to Americans, in this age or any other; there is a strong human compulsion to welcome authoritarian power, especially when perceived to be exercised on our behalf. 

For Americans, however, it’s a phenomenon filled with irony.  Our nation was created in the crucible of a fight over the abuse of executive power, and our Constitution was designed to ensure that the President could never grow more powerful than Congress.  James Madison and the other authors of the Constitution carefully crafted the terms of government so that radical Congresses and Presidents could stomp on the rights of Americans, and that neither could act without the other. 

Perhaps that is why most if not all of these executive actions end up as miserable failures, even those first hailed as political courage and genius. That’s true of practically every President from George Washington forward, but the lesson seems especially acute in the case of Barack Obama.

Obama’s presidency started in crisis, with the US economy shedding jobs at a rate unseen in decades and the financial system just starting to find its footing after the previous administration’s assertion of executive authority in the Troubled Asset Relief Program (TARP).  Congress authorized TARP as a way to buy up the mortgage-backed securities that had poisoned the financial markets after the collapse of the housing bubble, but the Bush administration turned it into a blank check to bail out the banks. 

Obama not only continued that process, but then used TARP to engineer political bankruptcies for automakers that preserved contracts for the unions while putting taxpayers on the hook for the grossly underfunded pension plans that had hobbled Detroit. 

TARP was never popular, but few raised serious objections in the fall of 2008 as panic gripped the electorate.  By the spring of 2009, though, it turned politically toxic.  Outrage over the way TARP money got spent by both the Bush and Obama administrations spawned the Tea Party, and later the Occupy protests. 

The latter appears to have petered out, but the Tea Party drove Democrats from control of the House in the 2010 midterms, and has already claimed at least one Republican scalp in the 2012 primaries, Senator Dick Lugar, who lost to Tea Party favorite Richard Mourdock in April.

Obama’s first act in assuming the Presidency was to issue an executive order to close the detention center at Guantanamo Bay within one year.  He had promised as much on the campaign trail, and his supporters joyously celebrated the imminent shuttering of Gitmo.  However, when the implications of that goal became clearly understood – for instance, trying Khalid Sheikh Mohammed and other 9/11 conspirators in Manhattan, in the kind of public forum they craved – even Democrats balked at Obama’s order and refused to provide funding for its implementation in a Congress they controlled. Three years later, Gitmo remains open, and the 9/11 conspirators will face justice in military commissions.

The most expansive use of extraordinary executive authority came next.  Obama demanded authorization to spend $800 billion in a stimulus package to rescue the economy and keep unemployment below 8 percent.  Democrats locked Republicans out of the crafting of the bill, and the end result gave Obama access to an amount of money in excess of the gross domestic product of Poland today, which ranks 23rd in world economies, with little oversight on its use. 

Despite arguing that these extraordinary executive resources could succeed in rebuilding the economy and protecting jobs, unemployment soared to over 10 percent. It has not dropped below 8 percent since then, with the civilian population participation rate in the workforce plummeting to a 30-year low as millions despaired of finding work in the US economy.

Finally, of course, this week provided the ultimate in executive action.  Obama asserted executive privilege in an investigation of how guns run into Mexico by the ATF resulted in the deaths of hundreds in Mexico, the murders of two American law-enforcement agents (Border Patrol agent Brian Terry and ICE agent Jaime Zapata), and how the Department of Justice misled Congress by claiming the program didn’t exist and that ATF never allowed guns to walk across the border at all. 

In this case, we have executive action designed to hide the failures of previous extra-legal executive action, this time within agencies that derive their authority in part from Congress itself.  That is likely to work out just as well as Obama’s previous assertions of extraordinary executive authority, and the escalation of the fight over Operation Fast and Furious practically guarantees that national media outlets will have to cover the scandal in much greater detail than over the past sixteen months of House Oversight Committee investigation.

Winston Churchill once wrote, “Bad kings made for good law,” noting that the abuses of monarchs in British history resulted in reactions that limited executive power.  For Americans, the abuses of executive power under Obama and other presidents should be a reminder that our founders had the right idea when designing a system that produced equal and competitive branches of government.  Not only does the system safeguard liberty, but forcing Presidents and Congresses to work together tends to produce much better policy as well.