Rubinstein: The Imperial Obama Administration

Thursday, July 12, 2012
By: Reed Rubinstein

The term “Imperial Presidency” became popular in the 1960s, and served as the title of a 1973 volume by historian Arthur M. Schlesinger, Jr. to describe the modern presidency of the United States. Schlesinger’s argument was that the Presidency and the Executive Branch had grown entirely out of control and that all constitutional limits on Executive Power had been lost. His real target, of course, was the Nixon Administration.

Leftist opponents of George W. Bush resurrected the “imperial Presidency” charge, claiming that the Bush Administration had slipped the constraints of constitutional limits with respect to its war-making authority in Iraq. As one critic wrote in a July, 2007 New York Times op-ed: “Given how intent the president is on expanding his authority, it is startling to recall how the Constitution’s framers viewed presidential power. They were revolutionaries who detested kings, and their great concern when they established the United States was that they not accidentally create a kingdom. To guard against it, they sharply limited presidential authority, which Edmund Randolph, a Constitutional Convention delegate and the first attorney general, called ‘the foetus of monarchy.’” Yet, for the most part, the Bush Administration was appropriately deferential to Congress and the courts, and the left’s “imperial Presidency” claims lacked substantial foundation.

The mantle of an imperial Presidency, however, sticks tightly to Barak Obama. In truth, the Obama Presidency has been absolutely Nixonian in its disregard for constitutional limits and uniquely disrespectful for the authority of Congress and the judiciary. Here are only a few examples:

  • The Obama administration committed US troops to combat operations against Libya on the basis of a UN Security Council resolution but without Congressional resolution, approval or sanction, contrary to the Constitution and the War Powers Act.

  •  In April 2012, the Obama Administration bypassed Congress to fund the Palestinian Authority via a waiver stating the aid was "important to the security interests of the United States." The $192 million aid packagewas frozen by Congress after the Palestinians moved to gain statehood at the United Nations in September 2011.

  • By administrative order, the Administration halted deportations of illegal aliens contrary to the laws of the United States.

  •  President Obama has attacked the authority and legitimacy of the Supreme Court in a manner and fashion without parallel in the post-war period. Opposed to an expansive definition of free speech, Obama took the unprecedented step of criticizing the Supreme Court during a State of the Union address. Then, when it became clear that the Court had serious doubts regarding the constitutionality of the Administration’s signature health care bill, the Administration launched a concerted and calculated effort to influence the Court by threatening to undermine its basic legitimacy. To begin with, the Administration needed unprecedented and corrosive procedural gamesmanship by Congressional leaders to enact Obamacare. Then, the President publicly warned the Court, in the midst of deliberations, that it “would be an unprecedented, extraordinary step” to find the law unconstitutional and influential political voices began urging the President to run a tough political campaign against the Court if Obamacare was overturned.

  •  In February 2011, Mr. Obama directed the Justice Department to stop defending the Defense of Marriage Act, which bars federal recognition of same-sex marriages, against constitutional challenges. DOMA was and remains a valid statutory enactment by the Congress.

  •  Mr. Obama bypassed the Senate confirmation process to install four officials using his recess appointment powers, even though the Senate was in pro forma session.

  •  The Administration "cooked" the auto bailout to benefit political supporters at the expense of statutorily protected bondholders without changing existing law. In the years leading up to the economic crisis, Chrysler had been unable to acquire routine financing and so had been forced to turn to so-called secured debt in order to fund its operations. Secured debt takes first priority in payment; it is also typically preserved during bankruptcy under what is referred to as the "absolute priority" rule — since the lender of secured debt offers a loan to a troubled borrower only because he is guaranteed first repayment when the loan is up. In the Chrysler case, however, creditors who held the company's secured bonds were steamrolled into accepting 29 cents on the dollar for their loans. Meanwhile, the underfunded and unsecured pension plans of the politically connected United Auto Workers were paid more than 40 cents on the dollar. This was unprecedented.

  • The Administration has waived "No Child Left Behind" requirements contrary to statutory provisions.

  •  In his first week in office, Obama issued an executive order to close Guantanamo Bay prison in Cuba, another to restore taxpayer funding of overseas abortion groups and one more to lift a ban on taxpayer funding of research using stem cells from human embryos. Later, when a federal judge struck down the stem cell executive order, Obama’s National Institutes of Health issued new guidelines for researchers that suggested they could basically ignore the judge’s ruling.

  •  The Administration has waived "Obamacare" requirements for favored companies and unions. There are no fixed standards for these waivers.

  •  After the Employee Free Choice Act—designed to bolster labor unions’ dwindling membership rolls—was defeated by Congress, the National Labor Relations Board announced a rule that would implement "snap elections" for union representation, limiting employers’ abilities to make their case to workers and virtually guaranteeing a higher rate of unionization at the expense of workplace democracy. This was quickly struck down by the courts.

  •  After an Internet regulation proposal failed to make it through Congress, the Federal Communications Commission announced that it would regulate the Web by order. This has been challenged in court.

  •  According to Politico, the Administration appointed at least 30 "czars to formulate and implement policy. Only five of these were subject to Congressional confirmation. None of the czars for "green jobs," "climate change," executive payments, healthcare, energy and environment, and science were vetted by Congress. Congress moved to rein the Administration in through its budget authority. However, President Obama in his signing statement regarding H.R. 1473, the FY 2011 Budget Bill, stated that section 2262 of H.R. 1473, which bars the expenditure of funds for four named White House staff positions, would be ignored.

  •  The Administration has repeatedly bypassed Congress, using executive orders, agency guidance and collusive lawsuit settlements, to implement environmental regulations. Specific examples are greenhouse gas regulation, expansion of Clean Water Act jurisdiction, chemical regulations, regulation of Chesapeake Bay stormwater runoff, reconsideration of national ambient air quality standards (NAAQS) for ozone, reversal of the California Waiver, retroactive veto of Arch Coal’s Clean Water Act permit for Spruce Mine No. 1, and overriding West Virginia’s water permitting authority to further burden the coal industry. The administration’s fuel economy standards, which can be viewed as the regulatory equivalent of declaring war on carmakers, were invoked without Congressional involvement, in a clear departure from past precedent when Congress has set the standards and the EPA has implemented them. This time, the EPA is doing both.


Reed Rubinstein is a shareholder in the Washington, D.C. office of Dinsmore & Shohl LLP and a member of the RJC's Leadership Council. The views expressed here are solely his own.