The Conversation

Obama's Imperial Presidency

President Obama was once a critic of unchecked presidential power but since taking office he has warmed up to the idea. Now, with the appointment of John Podesta, many believe he is poised to go farther than he already has to circumvent Congress.

Writing for the Christian Science Monitory, Linda Feldmann quotes constitutional scholar Jonathan Turley who believes Obama has already surpassed Bush in the use of executive authority:

In their use of executive orders, Bush and Obama are virtually tied: In his first five years in office, Bush issued 165 orders, versus 167 by Obama. But a bean-counting approach doesn't capture the scope of a president's approach to executive power.

"It's really the character of the actions, and their subject," says Jonathan Turley, a constitutional scholar at George Washington University in Washington, D.C. "In my view, Obama has surpassed George W. Bush in the level of circumvention of Congress and the assertion of excessive presidential power. I don't think it's a close question."

The author then lists a series of sweeping actions the President has already taken on his own authority:

Deferred Action for Childhood Arrivals (DACA). This policy, announced by the Department of Homeland Security in 2012, came via a memorandum that directs authorities to exercise "prosecutorial discretion" in dealing with some young undocumented immigrants.

[...]

Obamacare. Last July, when the president delayed the mandate for large employers to provide health coverage for their employees by a year, his critics cried foul.

"Obama's not interpreting the law; he's changing the law," says Mr. Turley. "He's changing deadlines that were the subject of intense legislative debate."

[...]

Gay marriage. Another bracing move by the Obama administration came in 2011, when the Department of Justice announced it would no longer defend in court the Defense of Marriage Act, a 1996 law that banned federal recognition of same-sex marriages. The Supreme Court went on to strike down part of the law last June, but that does not lessen the highly unusual nature of an administration declaring on its own that a law was unconstitutional, before the court had ruled.

Recess appointments. In yet another aggressive use of executive action – bypassing the Senate in making recess appointments to key executive branch positions when the Senate is technically still in session – Obama may be on the verge of getting slapped down by the Supreme Court. On Jan. 13, the high court heard arguments over Obama's three controversial recess appointments to the National Labor Relations Board in 2012.

There is political disagreement over whether some or all of these actions go too far. Because of that uncertainty, the only issue which seems likely to create a problem for the President is the last one. The Supreme Court will decide whether the President overstepped his bounds in making those recess appointments. If they decide he did (which some observers feel is likely), his use of executive authority will have been checked and any future use will be under additional scrutiny.

The most likely future use is to take action on climate issues. The President has been delaying a decision on the Keystone XL pipeline (which needs executive approval because it crosses the border with Canada). But Obama might also take broader action through the EPA. His recent appointment of John Podesta as a counselor is taken as a signal because Podesta has long urged greater executive action on climate issues.

But even if he is stopped now by the Supreme Court, Jonathan Turley believes Obama already "meets every definition of an imperial presidency." Turley adds "He is the president that Richard Nixon always wanted to be."


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