Compared with most presidents of the past half-century—and especially with his predecessor, George W. Bush—Barack Obama has in fact been quite reticent about asserting inherent “executive power” under the Constitution. Consider the use of “signing statements”—documents issued by a president when signing a bill, sometimes indicating that the executive branch will refuse to follow parts of the new law because it believes them unconstitutional. George W. Bush issued more than 160; Obama, in the same time period, 31.
In addition, the claim that “executive orders” are end-runs around Congress also doesn’t pass the laugh test. Every president since Washington has used them to implement laws passed by Congress—without them, bureaucrats can’t enforce new laws. (Some of the programs to which Obama’s critics most strenuously object—such as the so-called DACA/DAPA immigration initiative—didn’t flow from “executive orders” at all.)
But no matter how they have been promulgated, Obama’s uses of executive power have had an intriguing common thread. Under Ronald Reagan and the two presidents Bush, the executive branch often tied itself to the mast of a strong executive, one with “inherent” powers over war, peace, and law enforcement that Congress could not limit in any way. (After Congress passed the sweeping 2001 Authorization for the Use of Military Force, for example, Bush legal adviser John Yoo sent the president a memo advising that the Congress was out of line for passing it, because it suggested he needed authorization to attack any nation or group he chose at any time for any reason.)
Obama has never formally subscribed to this strong-executive theory. On paper, at least, he has insisted that he is working hard to fulfill the intent of Congress as expressed in statutes. This is a strategy I call “aggressive compliance”—it pushes the language of a statute as far as it can go in order to avoid a constitutional claim. In practical terms, the result is often the same—the executive gets its way––but there’s no corresponding assertion that Congress has no power. If, by some bizarre series of events, Congress collected itself to change a statute, and managed to overcome a presidential veto of that change, then, Obama would say, of course he would change his actions.
It’s better than simply proclaiming a president beyond the law. But it sometimes skates close to the edge of legality. Consider the administration’s claim that it could, without Congressional authorization, commit U.S. naval and air forces during the 2011 intervention in Libya. The action seemed to violate the 1973 War Powers Resolution, which requires a president to notify Congress before introducing U.S. forces into “hostilities,” and seek permission if that intervention lasts more than 60 days. Many presidents have claimed that the Resolution was an unconstitutional limit on their power. Obama instead issued a careful opinion admitting that the Resolution was valid—but suggesting that more than 100 cruise missile strikes, and dozens of air missions, were not, somehow, “hostilities.” It was too clever by half, and it is a lasting blot on Obama’s constitutional copybook.