An Imperial President?

Hardly. The smarter Republican response is to pass their own legislation, not howl in protest.

Speaker of the House John Boehner and Republican Senate Leader Mitch McConnell.
Speaker of the House John Boehner and Republican Senate Leader Mitch McConnell on June 26, 2014, at the U.S. Capitol in Washington, D.C.

Photo by Paul J. Richards/AFP/Getty Images

With a clear majority in both houses, Republicans face a difficult choice about whether to compromise with President Obama on a series of issues. Obama has already made it clear that he won’t be waiting for their decision. Instead, he is going to spend his final two years in office exploring the frontiers of executive power.

Last week brought two expressions of this new posture: the secretly negotiated agreement Obama announced in China with President Xi Jinping, and a statement he released on net neutrality that advocated regulating Internet service providers as “common carriers.” As soon as this week, the president is expected to move ahead on a third, more politically volatile issue of allowing millions of illegal residents to stay and work legally in the United States. The first announcement provoked Republican catcalls. The second made them howl. The third is rendering them apoplectic. At the extreme end, Rep. Matt Salmon, a Republican from the border state of Arizona, says Obama’s amnesty plan would constitute an “impeachable offense.”

Obama’s rationale for taking matters into his own hands is that all three are issues on which the GOP majority has refused to act. On climate change, House Republicans have used Chinese inaction as a pretext for doing nothing to reduce emissions themselves. On net neutrality, they have declined to give the Federal Communications Commission the authority it needs to prevent cable companies from creating fast and slow lanes on the Internet. On immigration, they have tabled comprehensive immigration reform legislation that would address the status of approximately 12 million undocumented long-term residents.  

Presidential systems, as opposed to parliamentary ones, produce executive-legislative conflict by their nature—see under: Latin America. The irony is that it is Democrats, who dominated the legislative branch between the 1950s and the 1990s, who have historically been most opposed to unilateral action by the executive branch. At the end of the Nixon years, the liberal historian Arthur Schlesinger decried the rise of an “imperial presidency” with its expanding zones of secrecy and dubious assertions of executive privilege. Through the Reagan years, Democrats opposed unapproved covert action and demanded respect for Congress’s constitutional power to declare war. After 9/11, they again complained about George W. Bush’s broad claims of authority around national security and his practice of appending secret signing statements to legislation he didn’t like, reserving the right to ignore it.

Now the shoe is on the other foot. It is the Republicans who dominate Congress and expect to do so going forward, whereas Democrats hold the White House and hope that Hillary Clinton will retain it for them in 2016. A more powerful presidency that can navigate around congressional obstinacy is in their interest, not just in the short term, but for the foreseeable future. This logic has finally persuaded a liberal president whose previous job was teaching constitutional law, and who did not come to office expecting to be denounced as a dictator. As recently as last year, Obama insisted that he lacked the legal authority to do what he now proposes on immigration. “I’m not the emperor of the United States,” he said on one occasion. “My job is to execute laws that are passed.”

The president’s recent actions stand in contrast to those of Bill Clinton, who after losing control of Congress in 1994, pursued poll-tested micro-initiatives calculated to show his relevance without upsetting anyone. Obama is invoking expanded authority on issues that do matter, and that are meant to provoke the other side. When it comes to immigration, he intends to make nonenforcement of the law his official policy. He would expand a program to stop issuing deportation orders against illegal residents who were brought to the United States as children, and against parents with children who are citizens. These steps could allow up to 5 million people to stay legally.

Congress is already reacting to this by challenging the president’s claim of authority in various ways. There’s talk again of shutting down the government by holding up annual appropriation bills and of holding presidential appointments hostage. But those steps will highlight the system’s current dysfunction, underscoring the rationale for Obama’s embrace of unilateralism. A smarter way to respond would be for Congress to assert its own Constitutional authority by finally passing legislation on the issues in question. Sending the president bills on climate change, net neutrality, and immigration—even bills he might veto—would undermine the president’s case for acting on his own.

A version of this article appeared online in the Financial Times.