President Obama's Executive Orders: The Only Tool Available to Him to Perform His Job?

Friday, February 12, 2016

The following piece will be appearing in the coming days in several newspapers in my conservative congressional district. -- Andy Schmookler

Republicans in Congress have called President Obama a tyrant for using executive orders to advance policies he favors. A challenge to one of his executive orders – on immigration – has reached the Supreme Court. They claim that the president exceeded his authority.

I don’t know whether the president exceeded his authority. Good arguments have been put forward on both sides. (My big hope is that the Court does not rule 5 to 4, with five Republican-appointed justices on one side and four Democratic-appointed justices on the other.  That would undermine the notion that the Supreme Court is governed not by partisan allegiance but by the Constitution and the law.)

Whatever the court rules, would it be right to condemn Obama for going too far with executive orders

Obama has issued such orders at a slower rate than any president in the past century. But beyond the sheer numbers — lower than those for George W. Bush, Bill Clinton and Ronald Reagan — any discussion of  this president’s use of executive orders should take into account the political context of these years.

It is well-established that the Republicans decided even before Obama was inaugurated, in 2009, to do all they could to make the president fail. But it was not until after the election of 2010, when the Republicans took control of the House, that they achieved the power to obstruct everything the President proposed.

And it’s not as though the issue has been anything “extreme” about his proposals.

Republicans have fought the president even when he advocates policies that originated on their side.Cap and Trade,” for example, was once a Republican idea. So was Obamacare. It originated in the conservative Heritage Foundation,  was proposed by Senate Republicans as an alternative to Hillary Clinton’s plan for health care reform in the 1990s,  and was  implemented at the state level by a Republican governor of Massachusetts named Mitt Romney.

Nothing that Obama has proposed on any issue has been radical. None of his ideas – whether they are good or not – has been outside American policy thinking of the past two or three generations.

So when President Obama turned to executive orders, it was because he had been deprived of the usual means — legislation -- by which an American president can give the nation the leadership the American people have hired him to provide.

Whether you applaud Republican obstruction, or consider it a violation of American political norms, the question should be asked: If I were in President Obama’s position, what would I do?”

Here’s my answer to that question.

I would see myself as having been chosen, by the American people, to do the job of president—a job that our founders regarded as of great importance. In the modern world, the president has a responsibility to move the nation forward. The president is especially called upon to make progress in those areas that he talked about when he ran for the office.

For the nation to be totally stalled by partisanship is contrary to how the American system is supposed to function.

So if I came to understand that it had become impossible for me to perform my role as president by working with Congress to pass legislation, I would turn to my legal counsel and my policy advisors and give them this assignment:

Come up with everything – consistent with the law and the Constitution – that I can do on my own to move the country forward in the ways I pledged myself to do when I was elected to this office.
The American people are ill-served if we acquiesce in governmental paralysis, especially when we have so many major challenges.

I don’t want to do anything that exceeds my rightful authority. But, in view of the destructive effects on the nation of our inability to achieve any kind of progress through Congress (witness our having had lately the least productive congressional sessions in our history), I don’t want you to err on the side of caution. Wherever a truly good case can be made for presidential authority, give that authority the benefit of the doubt.’’

If that is what the President has done, it is inappropriate – even hypocritical – for Republicans to attack him as a tyrant for turning to the only tool available to him -- executive orders -- to perform his job.