President Obama's Executive Power Grab

King Obama
Illustration by Ben Wiseman; Source: Brendan Hoffman / Bloomberg News-Corbis

Obama was gripping the telephone so tightly that it looked as if he were about to pulverize it in the palm of his hand.

Back in the spring of 2011, House Republicans had refused to raise the nation's debt ceiling unless the president first conceded to massive spending cuts—a gratuitous game of chicken that put the global economy at risk and defied decades of bipartisan Washington tradition. At the time, many Democrats, including Bill Clinton, were urging Obama to go it alone. I'd raise the debt ceiling on my own, "without hesitation," Clinton told a reporter. "[I'd] force the courts to stop me." But the White House insisted that unilateral action was "not an option."

Instead, Obama spent 44 days trying to forge a Grand Debt Bargain with John Boehner, the House Republican leader. The two politicians first negotiated over a round of golf at Andrews Air Force base. They haggled further while sipping merlot (Boehner) and iced tea (Obama) on the patio outside the Oval Office. Finally, at the 11th hour, Boehner and Obama seemed to agree on a plan that would slash domestic, defense, and entitlement spending by more than $1.65 trillion over 10 years.

But now it was Friday, July 22, 11 days before the debt-ceiling deadline, and Boehner was missing in action. Obama phoned the speaker three times. No response. And then, at 5:30 p.m., after 24 hours of radio silence, Boehner finally called the president back—to inform him that the deal was off. "I just couldn't do any more revenue," Boehner said. Obama was flabbergasted. "How do we put this back together again?" the president sputtered, tightening his hold on the handset. The speaker told him it was hopeless. Later, when asked to describe Obama's mood, Boehner would say that the commander in chief was "spewing coals," according to an account by Bob Woodward.

"The negotiations over the debt ceiling were astonishing to the president," recalls White House counsel Kathryn Ruemmler. "That really was a moment of 'wow.' It was a step beyond the regular Republican obstruction."

Late Sunday afternoon, Obama summoned his top lieutenants to the Oval Office. Something had changed. For months, Obama had been frustrated with congressional gridlock, which had intensified after Republicans took control of the House in January. And yet he'd always held out hope.

Not anymore. The Old Obama had pledged to usher in a golden age of bipartisan cooperation, then spent the first two and a half years of his tenure trying to meet the opposition in the middle. But the New Obama was fed up. Disillusioned. And he was done letting Congress stonewall his agenda.

These guys are willing to let the country go into default rather than negotiate a compromise, he said in disbelief. According to one participant, there was a recognition that the time had come to consider an audacious new governing strategy: what could Obama do without Congress?

Eleven months later, on June 15, 2012, the president strode into the Rose Garden to make an announcement. For the last five years, congressional Republicans had been blocking the DREAM Act: a bill designed to provide a conditional pathway to citizenship for immigrants who were brought to America illegally as children. Pressed by Latino advocates to take action, Obama had spent 2011 repeating that "we are doing everything we can administratively" because "this notion that somehow I can just change the laws unilaterally is not true." But now the president was doing something that he'd previously deemed impossible, and that Congress had repeatedly forbidden: singlehandedly granting relief to an entire category of young immigrants, as many as 1.7 million people, who'd otherwise be subject to deportation.

The reaction from Republicans was swift and severe. "The president's directive is an affront to our system of representative government and the legislative process, and it's an inappropriate use of executive power," thundered Sen. Chuck Grassley. "We should all be appalled at how this plan has been carried out."

Grassley's cri de coeur was, of course, predictable: the posturing of a committed partisan whose side had just seen its chances of winning over a key voting bloc collapse on the eve of a critical presidential election.

But he also had a point.

Barack Obama's decision to reverse himself on the DREAM Act was not an isolated incident. Instead, it was the culmination of a dramatic and very deliberate makeover that was set in motion that night with Boehner; that continues to this day; and that is poised to play a significant part in a potential second term, according to his advisers. "The president's hope is that he and Congress get another opportunity to work together, and they see the folly in their efforts to date," says Dan Pfeiffer, the White House communications director. "But what he's not going to do, if Congress refuses to act, is sit on the sidelines and do nothing. That's the path he's taken."

It is a transformation that could forever alter the way Washington works.

Since the summer of 2011, Obama's relationship with Congress, and with his own power, has undergone a fundamental shift. As a candidate, Obama decried George W. Bush's "my way or the highway" approach to governing. But while Obama has dialed back many of Bush's overseas excesses, the record level of congressional obstruction at home has compelled the president to expand his domestic authority in ways that his predecessor never did.

In February 2011, Obama announced that his administration would stop defending the Defense of Marriage Act in court, sparking controversy about whether he was shirking his duty to faithfully execute the laws passed by Congress. The following spring, the president effectively implemented greenhouse-gas regulations stalled in the Senate by allowing the EPA to interpret existing law more broadly. In September, Obama issued waivers that released states from the onerous requirements of No Child Left Behind but bound them to the administration's own education policies, which Congress had not passed. A similar set of welfare waivers soon followed. And in early 2012 the president bypassed the usual confirmation process to make four recess appointments even though the Senate had been holding pro forma sessions to block them. "This isn't just pushing the envelope," says Charles Tiefer, a former lawyer for the House of Representatives who now teaches constitutional law at the University of Baltimore, "but in effect breaking out of the envelope."

Like everything else in Washington, D.C., Obama's power play is a polarizing topic. Conservatives have charged the president with "reject[ing] the patience of politics required by the Constitution he has sworn to uphold" (George Will) and succumbing to the sort "naked lawlessness" that is the "very definition of executive overreach" (Charles Krauthammer). Liberals, meanwhile, have cheered Obama on. "President Obama devoted a great deal of effort to finding compromises with Congressional Republicans. That was futile," wrote Andrew Rosenthal of The New York Times. "Government by executive order is not sustainable ... But in this particular case, there may be no alternative."

Taken individually, none of Obama's unilateral maneuvers are particularly outrageous; presidents have been making similar moves for decades now. And yet together they represent a break from the past. Unlike most his predecessors—think FDR inventing the modern administrative state during the Great Depression, or Bush pushing the limits of torture and surveillance after Sept. 11—Obama is not expanding executive power to meet the demands of an external crisis. Instead, he is counteracting a new pattern of partisan behavior—nonstop congressional obstruction—with a new, partisan pattern of his own.

The result is an extraconstitutional arms race of sorts: a new normal that habitually circumvents the legislative process envisioned by the Framers. On one side of the aisle, Republicans are providing a blueprint for minority parties to come, demonstrating how it is possible, and politically advantageous, to use procedural tricks to incapacitate a president they oppose. On the other side of the aisle, Obama is drafting a playbook for future presidents to deploy in response: How to Get What You Want Even If Congress Won't Give It to You. "Obama is the first president to use his unilateral powers so routinely, especially in the domestic sphere," says University of Virginia presidential scholar Sidney Milkis, a self-described moderate Democrat. "And in some ways, that may be more insidious than what came before."

And so the question now is not whether the presidency has changed Obama. It's whether Obama is changing the presidency.

Conservatives like to argue that there's nothing unique about the GOP's current tactics. "This idea of unprecedented obstructionism is entirely ahistorical," says a staffer for Grassley, the top Republican on the Senate Judiciary Committee. "This is part of what the system does."

But the statistics tell a different story. Under Carter, Reagan, Bush 41, Clinton, and Bush 43, the Senate confirmed between 79 and 93 percent of the judicial nominees put forward during each administration's first 18 months. The confirmation rate under Obama? Forty-three percent, or roughly half the historical norm. In 1981, 37 Senate Democrats voted for Ronald Reagan's tax cuts; 20 years later, 12 Senate Democrats voted for George W. Bush's. In contrast, Obama pushed seven major bills before Republicans took control of the House in 2011. They received only 15 Republican votes—total.

Since then, very few challenging pieces of legislation have even reached the floor of the Senate, thanks to the GOP's record-shattering reliance on the filibuster. In the last three sessions of Congress, Republicans have threatened to filibuster on 385 separate occasions—equaling, in five short years, the total number of filibuster threats to seize the Senate during the seven decades from the start of World War I until the end of Reagan administration. A recent study showed that post-2007, with Republicans in the minority, threatened or actual filibusters have affected 70 percent of major legislation. In the 1980s, that number was 27 percent. In the 1960s, it was 8 percent. "This level of obstruction is extremely unusual," says Norman Ornstein, a congressional scholar at the conservative American Enterprise Institute. "And the core of the problem is the GOP."

None of this was news to the White House when Boehner backed out of the Grand Debt Bargain. "There was never an era of 'Kumbaya,'" says Pfeiffer. "We'd been dealing with shades of this for years." Still, it wasn't until that Sunday-afternoon gathering in the Oval Office that Obama seemed to internalize the threat to his presidency. "This is not what Obama expected to do," Ornstein explains. "I had conversations with people in the White House in which I said, 'You're going to be completely handcuffed if Republicans take over the House, so you need to figure out other ways to use your executive authority.' There was no 'Jeez, that's right' or 'We're on top of it.' They did not plan much in advance."

But as the summer of 2011 gave way to the start of the 2012 campaign, Obama's job-approval rating was still down (as low as 38 percent) and unemployment was still up (above 9 percent). The president needed to turn a corner. Usually, a chief executive in a similar bind will order his political team to conjure up a clever new message. But during a Saturday strategy session in the Roosevelt Room in early September, Obama decided to chart a different course: only by changing how he governed could he change how he was perceived.

Topic A that afternoon was the American Jobs Act: a grab bag of popular, largely bipartisan measures designed to stimulate the economy and spur hiring. When talk turned to congressional obstruction, Obama cut in. He had an idea. In addition to putting public pressure on Republicans to pass the bill, what if the White House further highlighted their obstructionism by taking action, unilaterally, where they would not? Heads started to nod. "We should look for any opportunity, big and small, to make the case we are doing everything we can," Obama said. "Congress has a role. They have to uphold their responsibilities. But everywhere we can do it, we're going to act to help the economy." Everyone in the room agreed.

"I want to sign housing relief and student-loan relief," Obama said. "I want say to Congress, 'We can't wait for you.'"

By Oct. 24, Obama was standing beneath a "We Can't Wait" banner outside the Bonilla family's home in Las Vegas—the president's spontaneous remark had become the White House's new slogan—and announcing a new, unilateral program designed to help homeowners refinance their underwater mortgages. Two days later, the president was flying to Denver and unveiling a multipart plan to ease terms on student loans. Over the next few months, the president became even bolder, issuing the controversial welfare waivers and making a handful of recess appointments while the Senate was still technically in session. In truth, Obama had been bypassing Congress, on occasion, ever since Republicans took over the House in January. But these isolated gambits—which included the president's decision to take military action in Libya without congressional authorization—now seemed united under the umbrella of his new governing (and messaging) strategy: if a legislative proposal fails, find an executive order or administrative directive to replace it.

Conservatives were enraged. "Where Obama is different from all of his predecessors is that in the domestic arena, he has decided that his views trump both houses of Congress," says constitutional lawyer Michael Carvin, who served in Reagan's Justice Department and blames Obama's legal philosophy for his new unilateral approach. "Liberal law professors use the Constitution to enforce their own policy preferences in an undemocratic way, and that's exactly what Obama is doing here."

White House officials agree that the president's legal views are important. But they see them as exculpatory rather than incriminating. Over the course of his career, Obama has consistently taken a pragmatic approach to government and the law, privileging the ends over the means. The constitutional scholar Laurence Tribe once described his Harvard Law protégé as a "functionalist" rather than a "formalist," and Obama would likely accept the label.

So when Republicans blocked the recess appointment of Obama's Consumer Financial Protection Bureau nominee by using a Democratic procedural trick—sending a member into the chamber every three days to bang the gavel, then claiming the Senate was in session—the president refused to get hung up on technicalities. The CFPB was a new agency. It had been approved by Congress. And it couldn't function without a director. "Just because some Republicans in the Senate didn't like the law, they were going to hold his appointment hostage," says White House counsel Ruemmler, recalling Obama's rationale. "He believed that some president was going to have to challenge this gimmick, because it fundamentally altered the balance of power." At the same time, Obama didn't want to overplay his hand. And so, on Jan. 4, 2012, he made his recess appointments, but limited them to four crucial slots, including CFPB chief Richard Cordray, rather than "go big" with as many as 60, as some advisers had suggested. Republicans promptly joined a lawsuit challenging the constitutionality of Obama's behavior—one of several that have cropped up since the summer of 2011.

Unfortunately for the GOP, it's probably impossible to persuade most voters, and most courts, that the president of the United States is regularly breaking the law (as even many conservatives concede). For every indignant conservative accusation, the White House has an equally indignant defense. The law encompasses a lot of gray area; Obama isn't going to get impeached, and rightfully so.

But what if the problem with Obama's "We Can't Wait" doctrine is more functionalist than formalist? In other words, what if it's not the law that's being broken here?

What if it's Washington itself?

Of all Obama's go-it-alone maneuvers, none highlights the thorny temptations of his new governing strategy as clearly as June's DREAM Act deferral—which was developed by Homeland Security Secretary Janet Napolitano on a separate track from the "We Can't Wait" initiative.

On June 15, the morning that Obama was scheduled to announce that the Department of Homeland Security would be setting up an elaborate administrative apparatus to process applications from immigrants who met the DREAM Act criteria, Sen. Marco Rubio was working from home in Miami. For months, Rubio had been reaching out to Republicans, Democrats, DREAM activists, and various other stakeholders in an effort to craft a revised version of the failed bill—an alternative that would attract support on the right as well as the left. But then Rubio saw the breaking AP report: apparently, Obama was now planning to "defer action" on DREAM-eligible immigrants all by himself.

The senator's "initial reaction was surprise," followed by "deep disappointment," according to Alex Conant, Rubio's press secretary. Rubio knew Obama's position on the DREAM Act, or at least he thought he knew it. "We live in a democracy," Obama had said in September 2011, when asked why he wasn't "granting administrative relief for DREAM-ers." "You have to pass bills through the legislature, and then I can sign it. And if all the attention is focused away from the legislative process, then that is going to lead to a constant dead end."

But now Obama was pursuing the same path he'd repudiated nine months earlier. "We were just not expecting it," says Conant. "The White House never contacted our office, either to discuss our legislation, to learn more, or to offer support. And then, after spending all this time and political capital moving the idea forward on the Hill, to have it be set back ... They just threw a political grenade into the issue."

So why pull the pin? "From what we understood of Rubio's proposal, it was not as good a public-policy solution as we would like," Pfeiffer says. "It put these kids, if it is as it was reported, in a permanent second-class situation where they had no path to citizenship." What's more, Pfeiffer adds, "when you call it the Republican alternative, there was only one Republican. There was no sign [this bill] was going to happen." Most of which is true enough (although a Capitol Hill source claims the Senate Republican leadership was "very supportive").

Either way, the bottom line is the same: there's a difference between going solo as a last resort and going solo when there's still a glimmer of hope. Looking back, it appears that what began as a reactive effort to counter congressional obstruction became, with the DREAM Act deferral, something more preemptive. At least one prominent Republican wasn't stonewalling anymore. He was devising a solution with the potential to push both sides toward compromise. That's how the process is supposed to work. But instead, Obama took "We Can't Wait" one step further than he originally intended, short-circuiting Congress before the gridlock, rather than after it. The president anticipated inaction. He preferred his plan to Rubio's. And he likely saw an opportunity to score some points with Latinos in the run-up to an election.

The result? On June 18, Rubio shelved his proposal, delaying any permanent relief for at least another year. Asked last week whether he anticipated working with Obama on immigration in the future, Rubio told reporters the president had already "poisoned the well."

And that's the trouble with making "We Can't Wait" routine. The fixes are only temporary, or partial, and they tend to inflame the same partisan and institutional animosities that provoke gridlock in the first place—which, of course, is the problem Obama insists he wants to overcome. A White House that can't wait is always in danger of becoming a White House that doesn't work.

Right now, few staffers at 1600 Pennsylvania Avenue would agree with that assessment. Obama's poll numbers have rebounded. Workers, immigrants, and homeowners have been helped. Nominees have been installed. And the GOP has been tamed, at least somewhat. "The production from Congress has gone up and the drama has gone down since last September," says Pfeiffer, citing agreements on small-business tax cuts, veterans benefits, and government funding. "The president has at least broken them of the fever of brinksmanship. It's probably not a coincidence that the approach we've taken has led to better results."

Asked whether Obama would continue to govern this way in a second term, Pfeiffer doesn't hesitate. "Yeah," he says. "Work with Congress where we can—and then be willing to act where they won't. There are always things on that list."

And if there's no second term? Conservatives are already thinking about the things President Romney could do with the powers Obama has embraced. For example: by citing the sort of prosecutorial discretion that the administration used to justify its DREAM Act deferral, Romney might "direct the IRS not to enforce [Obamacare's] tax penalty against anybody who does not buy insurance," says Noel Francisco, a White House lawyer under George W. Bush. "You effectively overrule the central component of the health-care law through a regulation."

It's a prospect the president does not take lightly; he has been known, during discussions about executive authority, to worry about "leav[ing] a loaded weapon lying around." But perhaps the weightiest warning came back in the beginning, during the debt-ceiling debate in July 2011. As various advisers grumbled about congressional obstruction, Vice President Joe Biden suddenly piped up. He'd spent his entire adult life in the Senate, 36 years, and he had more respect for the creaky old institution than anyone else in the room. The aging legislator wanted to remind Obama's team that whatever they did next, they had to do it in a way that preserved the integrity of the White House, Congress, and the relationship between them. "My concern is about the American people losing faith in government," Biden said, according to one participant. "We have to avoid that possibility at all costs."