Friday, January 31, 2014

Unilateralism 101


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.