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The Homebound "Imperial Presidency"

- April 9, 2014

The ominous cover of the House Majority Leader’s report.
Today’s installment in the ongoing “Obama vs. LBJ” media narrative – spurred by Obama’s imminent visit to the Johnson Library in Austin – makes two seemingly straightforward points. First, it argues that much of Obama’s “pen and phone” agenda, such as Tuesday’s executive orders on pay equity, consists of weak tea, substantively. Second, it suggests that (though hardly unconstrained), foreign policy is where presidents often turn “when domestic prospects recede.”
Yet the current version of the “imperial presidency” trope — reborn as a “rallying cry” against Obama on the GOP campaign trail — is notable exactly for claiming more or less the opposite. Exhibit A is House Majority Leader Eric Cantor’s Web site, where he has grafted a new addendum to his office’s spiffy “The Imperial Presidency” report (the pdf version now runs to 45 pages, albeit with some rather big print).
Cantor’s charges correlate with those of other critics, such as Sen. Ted Cruz and George Will.  And one key commonality is what is not there: foreign policy.
The eponymous charge of presidential imperialism, by Arthur Schlesinger Jr. back in 1973, was largely centered on the waging of secret, unilateral war (in Cambodia, say).  Such issues were also front and center in the debate over George W. Bush’s claims to executive authority — recall “enhanced interrogations,” the creation of military commissions, surveillance, treaty rights, and the like. And the Obama administration is surely vulnerable to these criticisms. Obama has shown more continuity than change in these areas, embracing a number of Bush-era practices and even pushing past them in some areas, for instance in authorizing the use of drones to kill American citizens overseas and in using military force in Libya without seeking congressional approval. (Bush, by contrast, sought and received legislative sanction for both the Afghanistan and Iraq wars.)
Yet the current slate of GOP charges is almost wholly domestic. The only problematic war, they suggest, is the “war on coal.”  The exception that proves the rule, perhaps, doesn’t help the case much: in charging Obama with refusing to implement a section of the fiscal 2003 Foreign Relations Authorization Act (dealing with the passports of U.S. citizens born in Jerusalem), Cantor’s report fails to mention that this provision was ruled unconstitutional by the D.C. Circuit Court of Appeals.
So this iteration of the imperial presidency is intriguingly homebound — suggesting that Obama is not “barely mov[ing] the needle,” as in Wednesday’s New York Times piece, but rather having an important and even tyrannical impact. The focus is on execution of the law: specifically, on the Constitutional mandate (Article II, Section 3) that the president “take care that the laws be faithfully executed.” Cantor, for instance, argues that Obama has exhibited a “sustained pattern of willfully refusing to enforce the law” and in many cases “re-wrote federal law by executive fiat.” Cruz sees “executive fiat,” and raises with “lawlessness.”  Cantor makes it clear he is largely interested in the implications of the president’s actions as they affect economic growth and job creation.
If this is a new emphasis, it does point back to an old topic: after all, this is really a way of arguing about the merits of the size of government and the executive-branch-centered administrative state. “In a complex, technologically advanced society in which the role of government is pervasive,” Richard Nathan pointed out back in 1983, “much of what we would define as policymaking is done through the execution of laws in the management process.” Since the 1930s, the American national state has expanded dramatically; more recently, partisan polarization has made achieving legislative action more difficult, and administrative action more appealing. Hence Obama’s “pen and phone.”  (Or, back in 2011, his “we can’t wait” campaign.)  And hence the new(-ish) “imperial presidency.”
Are these charges valid? It needs to be said that complaints about the scope of presidential power tend to be both cynical and cyclical. Republicans are usually pretty happy with strong Republican presidents; Democrats decry them; and vice versa. If Obama were in fact all-powerful, I’d like to think HealthCare.gov would be rather more consistently functional.
Still, if the charge of “imperialism” is too often casually asserted by a president’s opponents, it is also too quickly dismissed by his supporters. The fact that Obama has issued fewer executive orders than his predecessors – see this now-familiar chart  — is intriguing, but hardly dispositive. For one thing, it does not account for other mechanisms utilized by presidents to direct executive branch action. In 2013, for instance, Obama issued more executive memoranda than he did executive orders – combining the two measures leads to a fairly average output of unilateral directives.
Further, it is rarely true (as Cruz claims of Obama) that “in the nation’s history, there is simply no precedent” for a particular form of unilateralism. Therefore it is usually possible for defenders of executive excess, of whatever party (see, e.g., here and here), to utilize the following syllogistic form of magical thinking:
(1) a great president (Lincoln is best) did X, pushing Constitutional boundaries;
(2) my president (Bush, Obama) did something like X;
(3) therefore, my president is great.
In short, we need to walk through this question rather more carefully. In a subsequent post I will try to do just that. Stay tuned!