A July 1998 “New York Times” article described the
frustration inside the Clinton administration with the persistent gridlock in
Congress. To get around the gridlock, the Clinton administration planned to use
executive orders to accomplish their political goals. Presidential advisor Paul Begala summed it
this way: “Stroke of the pen. Law of the land. Kind of cool.”
In Tuesday night’s State of the Union address, President
Obama told Americans: “…you don't have to wait for Congress to act.” He then
explained areas where he could act without the support of the Congress: from
raising the minimum wage for some employees of government contractors, to
fixing problems in the economy and in our crumbling infrastructure by slashing
the bureaucracy. Even before the
address, media were already highlighting President Obama’s promise to govern
alone.
As the Begala quote above demonstrates, there is a great
deal of promise for a president to forget for a moment of our system of
“separate institutions sharing power”, and instead act alone. Presidents since
Washington have, from time to time, acted without the consent or blessing of
the Congress. But it has been the
presidency of the last 40 years that has made it a staple of governing. The question is why? There are two answers to that question.
First, the political polarization in our system makes it
difficult, even where the President’s party controls the Congress, to things
done. President George W. Bush enjoyed
(mostly) unified party government, along with very high public approval numbers
through most of his first term, yet he used the bill signing statement to void
more provisions of laws than all previous presidents combined.
Second, the president engages in unilateral behavior more in
his second term because he knows, along with the opposition, that his days are
limited. The political system begins the process of looking towards the next
presidency, and the opposition in Congress digs in its heels to prevent giving
the president, and his party, anything that may help in the next presidential
election.
As is often the case when the president decides to govern
alone, the critics claim that presidential unilateralism violates the
Constitution. Senator John McCain (R.
AZ), after Tuesday’s State of the Union Address, appeared before television
cameras and proclaimed President Obama “violated the intent of the
Constitution” while Senator Ted Cruz (R.TX) used words such as “executive fiat”
and “persistent pattern of lawlessness” to describe Obama’s promise to engage
in unilateralism. While partisans on the opposite side of the president claim
any unilateral action violates the Constitution, the fact remains that the
Constitution gives the president a great deal of room to act alone. The language of Article II is written with
less specificity than Article I, and thus encourages the president to push and
expand the boundaries of his constitutional powers.
The president has a diverse set of devices to help him work
alone. Among the more significant:
·
Executive agreements—Presidents make agreements
with foreign countries that have the force of law. The benefit to using an executive agreement
is they get around the Senate ratification process. Even though the Senate has ratified most
treaties, the process is cumbersome, lengthy, and has the potential to
embarrass the president if the treaty fails.
Thus modern presidents have utilized the executive agreement in
preference to the treaty, and President Obama has been more likely than his
predecessors to use an executive agreement instead of a treaty.
·
Presidential proclamations—Most people think of
the proclamation as largely ceremonial, such as the “Religious Freedom Day”
Proclamation. But some proclamations can
be substantive, such as President Bill Clinton’s proclamations claiming public
land. Those proclamations, issued in his final days in office, set aside
millions of acres of land as “protected” from developers, loggers, and energy
industries.
·
Presidential memoranda—these are circulated
throughout the Executive Branch to direct or explain a presidential policy or
position. But because they are directing bureaucratic decisions, they have the
effect of policy. Presidents have used memoranda
to lift or secure rules involving abortions or information related to abortion.
In fact, President Obama recently used the memoranda to deal with the issue of
guns and gun-related violence after legislation failed in the Congress.
·
Signing statements—The use of the presidential
signing statement dates to the Monroe administration. But the systematic use of the signing
statement to act as a type of item veto or to put the president’s spin on the
law dates to the Reagan administration. Recent
presidents have used the signing statement to prevent Members of Congress from
serving on executive branch committees, to protect military service personnel
who tested HIV positive, to limit protections for whistleblowers, and to refuse
to share information with congressional committees.
·
Executive orders—Executive orders date to the
Washington administration. These orders are
used to direct or instruct bureaucrats to either take a course of action or
cease taking an action. Presidents have
used executive orders to get around a recalcitrant Congress. For instance,
President Truman’s desegregation of the United States military in 1948 or
George W. Bush’s order creating the Office of Faith Based Initiatives after the
Congress refused to consider it for a cabinet level position. Bill Clinton used
an executive order to wage war in Kosovo.
While these unilateral devices give the president a great
deal of leeway to act, they do have some limitations. First, they are not as sound as legislation
and may have a greater likelihood of being overturned by the Supreme Court. For
instance, when President Bush used an executive order to create military
tribunals, the Supreme Court found it violated the Constitution. Second, the unilateral actions work best when
they do not attract the notice of the Congress, the media, and the public. When they do get noticed, the political push
back can render them ineffective. For instance, President Obama has issued a
signing statement in every national defense authorization bill he has signed
challenging provisions forbidding him to close the Gitmo detention facility. Even though he has refused to recognize the
provision as constitutional, the facility has remained open. And third, all of
these unilateral devices have no guarantees they will last past the term of the
presidency. Unlike legislation, which
would require congressional action, the incoming president can, with the stroke
of the pen, undo the unilateral actions.
For instance, Presidents Reagan and Bush used memoranda announcing
restrictions on the use of federal money to international family planning agencies
where abortions were concerned. President Clinton issued a memorandum after
taking office removing the restrictions. President George W. Bush issued a
memorandum soon after taking office reinstituting the restrictions, and then
President Obama issued a memorandum removing the restrictions.
It is clear that as the days draw to a close on the Obama
administration, there are two things that will happen: First, Obama’s
frustration with Congress coupled with his dwindling days in office will force
him to rely more and more on unilateralism.
Second, whoever wins the presidency in 2016, Democrat or Republican, one
thing is for certain—that person will discover a powerful set of unilateral devices
at his or her disposal, and will be under great pressure to use them.
