Is Barack Obama an imperial president?
President Obama’s use of executive action to get around congressional gridlock is unparalleled in modern times, some scholars say. But to liberal activists, he’s not going far enough.
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The (un)limits of executive powerSkip to next paragraph
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Starting with George Washington, American presidents have used executive orders, proclamations, and other techniques to wield power, usually without controversy. These moves can be as important as the Emancipation Proclamation, and as trivial as an executive order allowing federal workers to leave work early on Christmas Eve.
They carry the force of law, but are ill-defined. Legal scholars disagree even on whether there's a constitutional "bright line" that defines what a president can do on his own and what requires congressional action.
"It gets controversial when a president simply states that he's acting under the power granted to him by the Constitution and laws of the United States," says Phillip J. Cooper, author of the book "By Order of the President: The Use and Abuse of Executive Direct Action."
Bush invited controversy with his aggressive use of "signing statements," written pronouncements during bill signings that explain the president's view of a law – including at times the constitutionality of some aspects of it. In his first presidential campaign, Obama decried Bush's practice, but as president, he has continued it.
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."
Many of Obama's most controversial power plays have come through means other than executive orders. Here are some examples:
•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.
If they meet the criteria for eligibility, they are shielded temporarily from deportation and allowed to work. The DACA program enacted many of the goals of the failed DREAM Act legislation, though it does not create a path to citizenship.
Critics say that waiving deportation laws for more than a million people is not "prosecutorial discretion" – it's policymaking by executive fiat, usurping the role of Congress. Simon Lazarus, senior counsel at the Constitutional Accountability Center, disagrees, calling DACA "perfectly compatible with the president's discretion in the immigration area."
Ten immigration agents challenged DACA in federal court, saying the policy undermined their duty to enforce the law. Last summer the judge threw out the case on jurisdictional grounds, but suggested DACA was inherently unlawful.
Politics also infused how both sides handled DACA. For Obama, it was an obvious play for the Latino vote ahead of the 2012 election. For congressional Republicans, even if they could have attained "standing" to sue – a major problem in efforts to challenge executive action – acting to undo a policy that helps sympathetic young immigrants would have been bad politics. So they chose not to fight it.
•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.