WASHINGTON — One
Saturday last fall, President Obama interrupted a White House strategy
meeting to raise an issue not on the agenda. He declared, aides
recalled, that the administration needed to more aggressively use
executive power to govern in the face of Congressional obstructionism.
“We had been attempting to highlight the inability of Congress to do
anything,” recalled William M. Daley, who was the White House chief of
staff at the time. “The president expressed frustration, saying we have
got to scour everything and push the envelope in finding things we can
do on our own.”
For Mr. Obama, that meeting was a turning point. As a senator and
presidential candidate, he had criticized George W. Bush for flouting
the role of Congress. And during his first two years in the White House,
when Democrats controlled Congress, Mr. Obama largely worked through
the legislative process to achieve his domestic policy goals.
But increasingly in recent months, the administration has been
seeking ways to act without Congress. Branding its unilateral efforts
“We Can’t Wait,” a slogan that aides said Mr. Obama coined at that
strategy meeting, the White House has rolled out dozens of new policies —
on creating jobs for veterans, preventing drug shortages, raising fuel
economy standards, curbing domestic violence and more.
Each time, Mr. Obama has emphasized the fact that he is bypassing
lawmakers. When he announced a cut in refinancing fees for federally
insured mortgages last month, for example, he said: “If Congress refuses
to act, I’ve said that I’ll continue to do everything in my power to
act without them.”
Aides say many more such moves are coming. Not just a short-term
shift in governing style and a re-election strategy, Mr. Obama’s
increasingly assertive use of executive action could foreshadow pitched
battles over the separation of powers in his second term, should he win
and Republicans consolidate their power in Congress.
Many conservatives have denounced Mr. Obama’s new approach. But
William G. Howell, a University of Chicago political science professor
and author of “Power Without Persuasion: The Politics of Direct
Presidential Action,” said Mr. Obama’s use of executive power to advance
domestic policies that could not pass Congress was not new
historically. Still, he said, because of Mr. Obama’s past as a critic of
executive unilateralism, his transformation is remarkable.
“What is surprising is that he is coming around to responding to the
incentives that are built into the institution of the presidency,” Mr.
Howell said. “Even someone who has studied the Constitution and holds it
in high regard — he, too, is going to exercise these unilateral powers
because his long-term legacy and his standing in the polls crucially
depend upon action.”
Mr. Obama has issued signing statements claiming a right to bypass a
handful of constraints — rejecting as unconstitutional Congress’s
attempt to prevent him from having White House “czars” on certain
issues, for example. But for the most part, Mr. Obama’s increased
unilateralism in domestic policy has relied on a different form of
executive power than the sort that had led to heated debates during his
predecessor’s administration: Mr. Bush’s frequent assertion of a right
to override statutes on matters like surveillance and torture.
“Obama’s not saying he has the right to defy a Congressional
statute,” said Richard H. Pildes, a New York University law professor.
“But if the legislative path is blocked and he otherwise has the legal
authority to issue an executive order on an issue, they are clearly much
more willing to do that now than two years ago.”
The Obama administration started down this path soon after
Republicans took over the House of Representatives last year. In
February 2011, Mr. Obama directed the Justice Department to stop
defending the Defense of Marriage Act, which bars federal recognition of
same-sex marriages, against constitutional challenges. Previously, the
administration had urged lawmakers to repeal it, but had defended their
right to enact it.
In the following months, the administration increased efforts to curb
greenhouse gas emissions through environmental regulations, gave states
waivers from federal mandates if they agreed to education overhauls,
and refocused deportation policy in a way that in effect granted relief
to some illegal immigrants brought to the country as children. Each step
substituted for a faltered legislative proposal.
But those moves were isolated and cut against the administration’s
broader political messaging strategy at the time: that Mr. Obama was
trying to reach across the aisle to get things done. It was only after
the summer, when negotiations over a deficit reduction deal broke down
and House Republicans nearly failed to raise the nation’s borrowing
limit, that Mr. Obama fully shifted course.
First, he proposed a jobs package and gave speeches urging lawmakers
to “pass this bill” — knowing they would not. A few weeks later, at the
policy and campaign strategy meeting in the White House’s Roosevelt
Room, the president told aides that highlighting Congressional gridlock
was not enough.
“He wanted to continue down the path of being bold with Congress and
flexing our muscle a little bit, and showing a contrast to the American
people of a Congress that was completely stuck,” said Nancy-Ann DeParle,
a deputy chief of staff assigned to lead the effort to come up with
ideas.
Ms. DeParle met twice a week with members of the domestic policy
council to brainstorm. She met with cabinet secretaries in the fall, and
again in February with their chiefs of staff. No one opposed doing
more; the challenge was coming up with workable ideas, aides said.
The focus, said Dan Pfeiffer, the White House communications
director, was “what we could do on our own to help the economy in areas
Congress was failing to act,” so the list was not necessarily the
highest priority actions, but instead steps that did not require
legislation.
Republican lawmakers watched warily. One of Mr. Obama’s first “We
Can’t Wait” announcements was the moving up of plans to ease terms on
student loans. After Republican complaints that the executive branch had
no authority to change the timing, it appeared to back off.
The sharpest legal criticism, however, came in January after Mr.
Obama bypassed the Senate confirmation process to install four officials
using his recess appointment powers, even though House Republicans had
been forcing the Senate to hold “pro forma” sessions through its winter
break to block such appointments.
Mr. Obama declared the sessions a sham, saying the Senate was really
in the midst of a lengthy recess. His appointments are facing a legal
challenge, and some liberals and many conservatives have warned that he
set a dangerous precedent.
Senator Harry Reid of Nevada, the Senate Democratic leader, who
essentially invented the pro forma session tactic late in Mr. Bush’s
presidency, has not objected, however. Senate aides said Mr. Reid had
told the White House that he would not oppose such appointments based on
a memorandum from his counsel, Serena Hoy. She concluded that the
longer the tactic went unchallenged, the harder it would be for any
president to make recess appointments — a significant shift in the
historic balance of power between the branches.
The White House counsel, Kathryn Ruemmler, said the Obama
administration’s legal team had begun examining the issue in early 2011 —
including an internal Bush administration memo criticizing the notion
that such sessions could block a president’s recess powers — and
“seriously considered” making some appointments during Congress’s August
break. But Mr. Obama decided to move ahead in January 2012, including
installing Richard Cordray to head the new consumer financial protection
bureau, after Senate Republicans blocked a confirmation vote.
“I refuse to take ‘no’ for an answer,” Mr. Obama declared, beneath a
“We Can’t Wait” banner. “When Congress refuses to act and — as a result —
hurts our economy and puts people at risk, I have an obligation as
president to do what I can without them.”
The unilateralist strategy carries political risks. Mr. Obama cannot
blame the Republicans when he adopts policies that liberals oppose, like
when he overruled the Environmental Protection Agency’s proposal to
strengthen antismog rules or decided not to sign an order banning
discrimination by federal contractors based on sexual orientation.
The approach also exposes Mr. Obama to accusations that he is
concentrating too much power in the White House. Earlier this year,
Senator Charles E. Grassley, Republican of Iowa, delivered a series of
floor speeches accusing Mr. Obama of acting “more and more like a king
that the Constitution was designed to replace” and imploring colleagues
of both parties to push back against his “power grabs.”
But Democratic lawmakers have been largely quiet; many of them accuse
Republicans of engaging in an unprecedented level of obstructionism and
say that Mr. Obama has to do what he can to make the government work.
The pattern adds to a bipartisan history in which lawmakers from
presidents’ own parties have tended not to object to invocations of
executive power.
For their part, Republicans appear to have largely acquiesced. Mr.
Grassley said in an interview that his colleagues were reluctant to
block even more bills and nominations in response to Mr. Obama’s
“chutzpah,” lest they play into his effort to portray them as making
Congress dysfunctional.
“Some of the most conservative people in our caucus would adamantly
disagree with what Obama did on recess appointments, but they said it’s
not a winner for us,” he said.
Mr. Obama’s new approach puts him in the company of his recent
predecessors. Mr. Bush, for example, failed to persuade Congress to pass
a bill allowing religiously affiliated groups to receive taxpayer
grants — and then issued an executive order making the change.
President Bill Clinton increased White House involvement in agency
rule making, using regulations and executive orders to show that he was
getting things done despite opposition from a Republican Congress on
matters like land conservation, gun control, tobacco advertising and
treaties. (He was assisted by a White House lawyer, Elena Kagan, who
later won tenure at Harvard based on scholarship analyzing such efforts
and who is now on the Supreme Court.)
And both the Reagan and George Bush administrations increased their
control over executive agencies to advance a deregulatory agenda,
despite opposition from Democratic lawmakers, while also developing
legal theories and tactics to increase executive power, like issuing
signing statements more frequently.
The bipartisan history of executive aggrandizement in recent decades
complicates Republican criticism. In February, two conservative advocacy
groups — Crossroads GPS and the American Action Network — sponsored a
symposium to discuss what they called “the unprecedented expansion of
executive power during the past three years.” It reached an awkward
moment during a talk with a former attorney general, Edwin Meese III,
and a former White House counsel, C. Boyden Gray.
“It’s kind of ironic you have Boyden and me here because when we were
with the executive branch, we were probably the principal proponents of
executive power under President Reagan and then President George H. W.
Bush,” Mr. Meese said, quickly adding that the presidential prerogatives
they sought to protect, unlike Mr. Obama’s, were valid.
But Jack L. Goldsmith, a Harvard law professor who led the Justice
Department’s Office of Legal Counsel during the George W. Bush
administration, said the Obama administration’s pattern reflects how
presidents usually behave, especially during divided government, and
appears aggressive only in comparison to Mr. Obama’s having been “really
skittish for the first two years” about executive power.
“This is what presidents do,” Mr. Goldsmith said. “It’s taken Obama
two years to get there, but this has happened throughout history. You
can’t be in that office with all its enormous responsibilities — when
things don’t happen, you get blamed for it — and not exercise all the
powers that have accrued to it over time.”