an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
When Is "Unilateral" Executive Authority Not Unilateral?
When it's bilateral, of course.
It has become increasingly fashionable in recent months to assert that when it comes to questions of the relative constitutional powers of the political branches, President Obama has substantially abandoned the views he held before taking office and, chastened by the realities of the office, has largely embraced and recapitulated the conduct of his predecessor. The lead story in the New York Times today contributes to that common but flawed "convergence" narrative, by touting an alleged acceleration in President Obama's use of "unilateral" executive powers. ("Unilateral" is the adjective of choice throughout, except that at one point the story refers even more pointedly to "executive aggrandizement.") In so doing, the Times, like many recent commentators enamoured of the "convergence" narrative, has unfortunately conflated executive actions of at least three different kinds (roughly corresponding to the categories in Justice Jackson's famous Steel Seizure Case concurrence): (i) cases where the President acts pursuant to statutory authority; (ii) cases in which the President acts on the basis of asserted constitutional authority but without legislative authorization; and (iii) cases where the President asserts the power to disregard statutory directives, that is, to "flout" Congress.
At least two things are conspicuously absent from the Times story. First, as author Charlie Savage himself acknowledges (citing Rick Pildes), President Obama has not used executive power in the manner made controversial during the Bush Administration--namely, by acting in violation of a statute.
Second, although the focus of the story purports to be about the use of "unilateral" executive power, the article itself includes only one example of the exercise of unilateral, constitutional authority by the current President--namely, his four recess appointments on January 4th. (Savage also discusses at length the President's determination that section 3 of the Defense of Marriage Act violates the Fifth Amendment. Even in that case, however, where the President and Attorney General are not defending a statute in litigation because they concluded that it's unconstitutional, they have continued to enforce it pending judicial resolution of the constitutional question.)
The cases Savage cites are instead overwhelmingly instances in which the Executive has acted pursuant to what it views as delegated statutory authority. (Among the actions cited are: a cut in refinancing fees for federally insured mortgages; "increased efforts to curb greenhouse gas emissions through environmental regulations"; "giving states waivers from federal mandates if they agree to education overhauls"; "refocusing deportation policy in a way that in effect granted relief to some illegal immigrants brought to the country as children"; and "moving up of plans to ease terms on student loans")
And who, exactly, has delegated all of this authority to the Executive? Congress, of course.
The phenomenon Savage describes thus is a simple, and familiar, one: The President has urged Congress to enact new, expanded authorities to better or more comprehensively address a serious problem; but when a recalcitrant legislature refuses to do so, the President falls back to the next best thing--namely, exercising the more circumscribed authorities Congress has already conferred upon him. The White House officials quoted in the story rightly commend the President for not spending his term waiting for a bipartisan moment that just won't come. But what he has done, while Congress fiddles, is simply to use the imperfect authorities conferred upon him by earlier, less stubborn legislatures. That is, indeed, a notable emphasis in the second half of the term, worthy of a story. But it is nothing like the assertion of "unilateral" executive power, let alone the "flouting" of Congress or the adoption of his predecessor's constitutional views. (And to the extent Savage is focused on the President's use of (statutorily authorized) executive orders to accomplish his policy objectives, that's hardly a new phenomenon: The President issued over 100 such orders before the alleged "shift" described in the Times article occurred--18 of them in the first 50 days of his Term alone.)
To be sure, there have been some legal challenges to agencies' interpretations of the scope of their statutory authority, as happens regularly in every administration: Jonathan Adler notes, for instance, that there is a pending challenge in court to certain rules promulgated by the Environmental Protection Agency. But in the event the courts hold that an agency lacks the statutory authority it has asserted, there is no indication the Obama Administration intends to assert constitutional powers to do something that Congress has not authorized (let alone anything Congress has prohibited).
It's also worth pointing out that two of the cases Savage cites are instances in which the Administration declined to exercise authority that it could have asserted under the relevant statutes--when the President reportedly "overruled the Environmental Protection Agency’s proposalto strengthen antismog rules [and] decided not to sign an order banningdiscrimination by federal contractors based on sexual orientation"--perhaps in part in order to avert challenges to the statutory bases for such actions. (UPDATE: Savage also suggests that the student loan initiative was amended when Senator Grassley raised questions about legal authority--if true, another example of sensitivity to congressional authority rather than "flouting.")
Moreover, there's nothing hypocritical about what the Administration has done here. The frame of the Times story is the fact that "[a]s a senator and presidential candidate, [President Obama] had criticized George W. Bush for flouting the role of Congress." Not only doesn't Savage cite any instances of President Obama "flouting the role of Congress," however; he also doesn't cite any assertion of constitutional authority that is inconsistent with anything the President argued as a Senator or as a candidate.
[One finalpoint on so-called "czars": The Timesarticle assets that the President has claimed "a right to bypass . . .Congress’s attempt to prevent him from having White House 'czars' on certainissues." That's not a fair characterization. The provision inquestion, in the 2011 Defense Appropriations Act, prohibits the use of designatedfunds "to pay the salaries and expenses" for four named "positions": Director of the White House Office of Health Reform; Assistant to the Presidentfor Energy and Climate Change; Senior Advisor to the Secretary of the Treasuryassigned to the Presidential Task Force on the Auto Industry and SeniorCounselor for Manufacturing Policy; and White House Director of Urban Affairs. In his signing statement, the President explained that he would construe thisprovision "not to abrogate" his prerogative "to obtain advicethat will assist him in carrying out his constitutional responsibilities,"including from advisers with the White House. That's unremarkable, seeingas how the provision, fairly read, doesn't impose any such limit on the persons from whom thePresident can receive such advice. The President has not asserted any authority to ignore the statutory restriction by using funds to paysalaries or expenses for the named positions.] Posted
by Marty Lederman [link]