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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"He could have argued that you encounter things you don't anticipate" when implementing a major law, says Mr. Fisher, who spent 40 years at the Congressional Research Service as a specialist on separation of powers. "But no, he keeps digging himself in deeper."Skip to next paragraph
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The politics of executive power is risky. Wielding it often, instead of going through Congress, can look like a crutch. And it further poisons the well of already icy relations with Congress. Then there's the issue of an executive order's durability, and the reality of elections that, sooner or later, bring the opposition party into power.
"Executive orders can be undone very easily," says Mr. Galston, the former Clinton aide. "If you want to make enduring change, you have to work through the established institutions and procedures for making such changes."
Obama says he prefers getting congressional buy-in, rather than moving unilaterally. But getting Congress to act has become a Sisyphean task. Last year was one of its least productive on record; its most memorable act may have been failing to fund the government, leading to a shutdown.
Not that there's anything wrong with issuing executive orders as a legitimate function of the presidency, Galston notes.
"Within appropriate limits, the president ought to use them," he says. "You don't have to be a great and subtle reader of the Federalist Papers to know that Alexander Hamilton, the father of the executive, talked about it as the source of energy in the government."
But sometimes that energy can create its own momentum. Obama's frequent use of executive action has only whetted activists' appetite for more, squeezing the president from the left even as his critics scream tyranny and, along the fringe, talk about impeachment.
Remember Ju Hong, the young South Korean man who was invited to stand with the president during an immigration reform speech – and suddenly began heckling him? Obama's DACA move was huge and controversial, but for immigration reform activists, it was only a start. Why not just give every otherwise-law-abiding undocumented immigrant a free pass while Congress sorts out the law? some ask.
Obama clearly believes he can't do that, but what's not clear is whether he might decide he can waive deportation for another group, such as the parents of the young DACA beneficiaries.
On the issue of inequality, Obama is urging Congress to raise the federal minimum wage – a campaign that has boomeranged back on the president: Progressives are lobbying him to use his executive authority to raise the minimum wage for federal contract workers, but he hasn't responded. Some liberals in Congress openly question whether he's more talk than action.
On gay rights, Obama has long faced pressure to sign an executive order banning workplace discrimination against gay, lesbian, and transgender federal contractors. But he has resisted, saying he would rather Congress pass the broader Employment Non-Discrimination Act. ENDA would prohibit workplace discrimination based on sexual orientation by most employers, but the legislation is stalled.
On Guantánamo, Obama was outmaneuvered by Congress after he signed an executive order early on ordering the controversial detention center closed. And so it remains open. But in the eyes of some legal experts, Obama is failing to take creative advantage of his power as commander in chief in dealing with the camp.
"Win, lose, or draw, it is time to get around Congress," writes Harvard University law professor Noah Feldman at Bloomberg.com. "And if ordinary politics won't do the trick, going to the courts may be the best option – because it is the only one."
Checks and imbalances?