(LEFT: President Barack Obama signs into law the American Recovery and Reinvestment Act, with Vice President Joe Biden looking on, in front of a crowd in Colorado on February 17, 2009).
Presidents wield considerable power to change public policy, particularly in national security and foreign affairs but even in a score of domestic matters. The ability of the President to influence the legislative agenda, bring an issue into the mainstream, or rally his party is similarly strong. However, a President's effectiveness in overcoming intransigent congressional stubbornness and corralling public support for policies is wildly overblown.
National Journal recently laid out a compelling case regarding this president and it correctly asserted that
Barack Obama is one of the most powerful chief executives in the history of American presidents. In his first term, the President used the powers of his office to:
halt the deportation of hundreds of thousands of young undocumented immigrants,
enact several executive orders aimed at boosting economic growth,
unilaterally kill an American citizen affiliated with a branch of Al-Qaeda,
order the Justice Department to stop defending the Defense of Marriage Act, and
make appointments to the Consumer Financial Protection Bureau and the National Labor Relations Board. All of that was done without any help from the United States Congress. In President Obama's second term, he issued
23 executive actions to prevent gun violence,
delayed the enforcement of two crucial aspects of his signature health care law, ordered the Environmental Protection Agency to
strengthen limits on carbon emissions, and authorized his Attorney General to
curtail the use of mandatory minimums -- all, again, without Congress.
Obama is not the first president to wield significant power in his time in office. His immediate predecessor, George W. Bush, ordered
warrantless wiretapping of U.S. citizens, authorized
waterboarding of foreign terrorist suspects, and created a sprawling,
new federal cabinet-level department. The most notable presidents in history are those who asserted significant authority, such as Jackson (dissolving the National Bank), Lincoln (suspending habaeus corpus during the Civil War), and FDR (New Deal, World War II). If presidential history proves anything, it is chiefly that the power and influence of the President of the United States has continually strengthened and expanded, both in policy and in politics. Nevertheless, while the supporters of a president who falls short of policy goals often
understate the power of the presidency, skeptics and pundits who peddle Beltway conventional wisdom in the mainstream media often vastly
overstate the power and reach of a president.
First, the power of the presidency is undeniably the greatest in the realms of national security and foreign affairs. In this arena, the influence of the president has dramatically grown over several decades. To say that a president has little authority in decisions of national security and foreign policy is laughable. Consequently, there has been
considerable debate recently amongst constitutional scholars, law professors, policy thinkers, and politicians, among others, as to whether this rise in power is warranted, wise, and constitutionally permissible. Presidents
Bush and Obama, in particular, have broadened this power. Both presidents presided over a wide expansion of unilateral U.S. drone strikes aimed at terrorist suspects in various countries we are not officially at war with, continually enlarging domestic and foreign surveillance programs, and controversial detention policies at home and abroad. Journalist Glenn Greenwald, who first uncovered Edward Snowden's NSA revelations, asserts that
such "unlimited presidential power" is "wholly alien and antithetical to the core" of our constitutional limits and civil liberties. To some extent, Mr. Greenwald is correct in his assessment. Certainly, Bush's authorization of warrantless wiretapping was a
clear violation of the 1978 FISA law. Obama's
refusal to ask Congress for approval of authorization to use force in Libya was legally dubious, at best.
Greenwald's sweeping language ignores two crucial realities though. For one, early American history, dominated by the same Founding Fathers civil libertarians frequently cite as ideal models for today's presidents, was defined by presidents perceived to be overstepping boundaries of power. George Washington's
response to the Whiskey Rebellion and
John Adams' signing of the Alien and Sedition Acts stand out as examples. Second, the actual language of the U.S. Constitution and the resolutions authorizing military force are vague and ambiguous enough that they have arguably allowed for the rise of such presidential power.
Article II, Section II of the Constitution broadly designates the president as the "Commander in Chief of the Army and Navy...when called into the actual service" while the
Authorization to Use Military Force in 2001 states that the "President is authorized to use all necessary and appropriate force against those nations, organizations, or persons
he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons." One can debate the merits of this language, whether it is too broad, and how much authority it genuinely authorizes. It is clear though that whether it was the Founders over two centuries ago or the Congress over a decade ago, the framers of the law have always provided significant leeway and broad powers to the office of the President in crafting national security and foreign policy. As such, the President has sizable influence in control, direction, and actions of the U.S. military in his role as Commander in Chief, in negotiations, treaties and leading diplomatic efforts across the globe as seen in the successful deal to destroy Syria's chemical weapons, and, particularly in recent years, knowledge and power over the vast apparatus of electronic surveillance. That is a lot of power for a singular person.
Second, though it is sometimes dismissed, overlooked, or downplayed, a president does actually hold the authority to make sizable changes in the lives of real people in domestic policy as well. The size and scope of this power is certainly not as expansive as it is in foreign affairs and national security policy. However, sometimes supporters of a president will delude themselves into thinking that a president is simply not powerful enough to influence domestic policy in any real way without the help of Congress. It is true that without Congress, a president is limited in his or her capacity. A sampling of recent history though indicates that, still, even without the help of the legislature, a president can get a a lot accomplished. Through executive actions alone,
President Obama eased access to mental health services for veterans,
President Bush blocked certain forms of stem-cell research,
President Clinton lifted a policy that prevented support for international family planning efforts, and the
first President Bush stopped the importation of semi-automatic weapons. If supporters of a president mobilize hard enough and make their voices be heard in favor of a certain policy change that can occur through executive action, it may very well happen. That was the point of labor activists who lobbied and protested for the Labor Department to extend overtime pay and minimum wage protections for over 2 million home care workers -- a promise of Obama's 2008 campaign. Their advocacy was ultimately fruitful as the Obama Labor Department recently announced they will, in fact,
extend such protections by 2015 -- again, possible without the help of Congress. That is also the point of progressives who
marched the streets of DC in favor of higher pay for low-wage workers hired by federal contractors. They hope the President, through the force of executive action, can lift these workers out of poverty; he does have that power. As Franklin D. Roosevelt extolled to supporters, "
I agree with you, I want to do it, now make me do it." If advocates for swift change make their case loud enough, strong enough, and with enough backing, they can get their way because such pressure applied on politicians does often succeed, as the Labor Department's decision demonstrated.
Presidents' ability to unilaterally change domestic policy is constrained compared to the sweeping authority given in foreign affairs but it is seemingly
less controversial among scholars and professors who worry about the rise of presidential power. This is because, in the realm of domestic affairs, the Constitution is clearer and more explicit, the powers are carefully limited given Congress' prerogative in crafting legislation, and presidents have recently stretched legal boundaries more so in foreign affairs than in domestic affairs.
Article II, Section III of the Constitution explicitly spells out that it is the duty of the president to "take care that the laws be faithfully executed." The power of the president to aggressively or discretionally enforce existing laws is clear. It is this provision that allows the current president to enact 23 executive actions on gun safety, all of which merely strengthen the enforcement of existing gun laws, but also to cite prosecutorial discretion in saving hundreds of thousands of young undocumented immigrants from deportation. Scores of scholars of the law
backed these decisions. Further, environmental protection and consumer safety laws passed in the last several decades and federal regulatory agencies created since then have both widened the power of the presidency. It is up to a particular president to ensure that these laws and agencies -- yes, created by Congress -- are fully enforced, assertive, and making a real difference in people's lives. For his part, President Bush was
lackadaisical in enforcing environmental laws - his White House refused to open an email from the EPA calling for stricter enforcement! - while President Obama has recently stepped up EPA regulations on carbon emissions from coal-fired power plants. Federal agencies can even enact regulations that both protect people's lives and also create jobs in the process, without new legislation from Congress, as seen in the case of a
recent OSHA regulation.
There are some who are somewhat alarmed by even the vast influence of the president and the executive branch in domestic policy. GW constitutional law professor Jonathan Turley wrote a compelling piece in
The Washington Post outlining the aggressiveness of power in some federal regulatory agencies and how they have become a "
fourth branch of government." The prosecutorial and
spying powers of the FBI and other domestic law enforcement agencies, including the
Department of Homeland Security, have also come under intense scrutiny from civil libertarians and liberals. However, while Turley cites good examples of domestic policy power run amok and certainly
federal law enforcement under a power-hungry president could be dangerous, there are also strong cases to make for the executive branch enacting
good rules and regulations that strengthen people's lives.
The Consumer Financial Protection Bureau is showing that everyday that it stands up to big banks. The vast power of the presidency to change lots of people's lives without the help of Congress is seen further in the ability of the president to negotiate treaties such as the Trans-Pacific Partnership that can affect laborers at home, implement executive orders and actions such as Obama's 2011 "We Can't Wait" initiatives to spur the economy, and to pardon anyone. The Nation Magazine has done a terrific job of showing how Obama has
lagged in his disappointing pardon record. He holds the power to literally forgive people of their crimes, commute sentences, and free from prison many, many people unjustly jailed for decades for nonviolent crimes, most notably drug crimes. He could do that
without Congress. Unfortunately, Obama has yet to be bold in this arena and he has issued fewer pardons than any president in modern history. The Nation has also done a superb job of
pointing out executive actions this president can take on his own -- some of which, he has yet to do -- that would significantly improve life for millions, including in
economic affairs. If Obama wants to overcome congressional intransigence to improve the economy, he could take action on his own to do so, as he did in 2011 and 2012 with several executive orders. The huge weakness of executive actions though is that they can be easily undone by the next president -- as President Bush showed when he
rid of many of President Clinton's executive orders -- but if the policy that is enacted becomes popular and makes a huge difference for a lot of people, then it could stick around for a while.
Third, the president is very powerful in terms of setting the legislative agenda for Congress and the agenda for the nation. Most importantly, he
submits a yearly budget to Congress thus setting into motion a national debate regarding spending priorities, values, and what we cherish as a nation. Consequently, members of Congress and much of the public will have on their mind issues that they may not have otherwise thought about considerably. Vice President Joe Biden did a good job of demonstrating this reality when he
spoke to a crowd at The Howard Theater in April 2012. He urged supporters to imagine what the first Obama/Biden term would look like if John McCain and Sarah Palin were elected. Health care reform, the signature achievement of Obama and Biden, would likely never have even been a part of the national debate. LGBT rights would see little to no support in a McCain/Palin administration and would not be as dominant a part of the national conversation. A perfect example of what Biden was talking about could be reflected in his second term as vice president when he led the administration's push for stricter gun laws. It is true that Sandy Hook forced these issues into the forefront but a Mitt Romney administration surely would not have made gun control a central part of their legislative agenda and would not have made it such an overarching part of the national dialogue. The Obama/Biden administration chose a different path than what Romney and Ryan would have done and invested the first several months of their second term to passionately making the case for gun control. It remained firmly implanted in the minds of millions of voters, many of whom subsequently joined new organizations like Gabby Giffords and Mark Kelly's Americans for Responsible Solutions, and in the docket of members of Congress who scurried to craft proposals like the Manchin/Toomey bill. Needless to say, the president has sweeping power to sign or veto bills that Congress ultimately passes. It should be noted too that if the Senate complies in passage of appointments to the federal judiciary and the Supreme Court, the President can dramatically remake society. However, these latter two examples obviously require a willing Congress.
Fourth, without Congress though, the president has a strong power to bring issues into the mainstream of American public thinking and subsequently influence our culture. In recent history, no better example of this exists than President Obama's endorsement of same-sex marriage in May 2012. As the first sitting president to publicly endorse marriage equality, Obama essentially legitimized and gave a crucial stamp of official approval to a practice once viewed as extremely controversial and very unpopular. My friend Alex Yudelson said it best when he said that Obama's endorsement of gay marriage "changed the political culture" on the issue as it led to Democratic members of Congress falling over one another to endorse same-sex marriage and the national party endorsing marriage equality. This shows another overlooked power of the president: his or her ability to corral his party and influence their thinking. After Obama backed gay marriage,
registered Democrats' support for it increased in public opinion polls and was soon followed by Democrats in Congress embracing it too. During his presidency, George W. Bush's endorsement of vast national security powers
brought on board millions of registered Republicans and GOP members of Congress into supporting these measures despite their
resistance to those same measures when Bill Clinton proposed them in 1995.
In the end though, the President is not all powerful. Writers like Ron Fournier of National Journal notoriously
exaggerate the extent to which the president can change things on his own. These writers often lament that if only the president showed more "leadership," he could compel John Boehner to sit down and talk with him and negotiate great deals that will reduce the deficit and create jobs. The fact of the matter is that congressional stubbornness is hard to overcome if Congress is stubborn! Who knew? Even Lyndon B. Johnson faltered in bringing the Congress on board with domestic legislative proposals after his party suffered massive losses in the 1966 midterm elections. He did best in passing elements of the Great Society when he had stronger majorities in Congress; the same was evident with Obama, who utilized large Democratic majorities from 2009-2011 to pass several large-scale domestic reforms, but has been unable to do so since 2011. As political reporter John Harwood said, "the difference" is
not schmoozing. Republicans control the House, many of them are from partisan gerrymandered districts where Obama is extremely unpopular, and Obama has a vastly different agenda than many of them were elected to pursue.
Greg Sargent, Brendan Nyhan, John Sides, Ezra Klein, and other writers do a terrific job in various articles, journals, and books of showing how many pundits wrongly convince themselves that if a president barnstormed the country and sat down for hours with members of Congress and just showed some more magic leadership, things can get done. A lot of pundits also falsely believe that a president going out and embracing an issue and driving it home passionately would naturally increase public support for it. While that may be the case within the president's own party, that is not necessarily the case for the public at large. Scholars of presidential history assert that this kind of activism from a president tends to
polarize an issue that thus becomes more divisive because the president, a political figure, seized on it. Sometimes, the president could have the same effect on Congress. If a president gets too involved in legislative details or endorses proposals before they come up for a vote or intertwines too much in the process of passing a bill, they could cripple the process. Legislators often like to be left alone to figure out the details on their own because they know each other best or, as may be the case, a president's strong support of specific legislative measures could
convince members of the opposition party to vote against those provisions. In the immigration reform debate and in the health care reform debate, observers like Ezra Klein and legislators like Senator Chuck Schumer have argued that
Obama's deference to Congress in figuring out the specifics increased the chances of legislative success. In truth, the president is not as powerful or influential with Congress and the public as these pundits suggest and these writers do a good job of making that case.
Ultimately, the president is a powerful but not almighty figure. Constraints are built within our system and checks and balances and separation of powers exist within the framework of the Constitution in the form of basic rights, the Supreme Court, and in Congress that prevent a president from being too radical. Despite some frustrations that things may not be getting done because of the intransigence of Congress, this fact of life about our presidency is, generally, a good thing. In this arena, our Founding Fathers largely found the right balance.
