Obama has been willing to push the bounds of executive power when it comes to making life-and-death decisions about drone strikes on suspected terrorists or instituting new greenhouse gas emission standards for cars.
But at other times he has been skittish. When immigration activists first urged him to halt deportations of many illegal immigrants, for instance, Obama said he didn’t have the authority to do so. He eventually gave in after months of public protest and private pressure from immigrant and Hispanic advocates, granting relief to certain people who had been brought to the United States as children.
And at key moments, Obama has opted against power plays. In the 2011 debt-ceiling fight, Obama ruled out unilaterally raising the country’s borrowing limit even though some constitutional scholars, as well as many of his political allies, believed doing so was well within his authority.
The president’s inconsistency is so befuddling that not even his critics can get it straight. They simultaneously charge that he is “leading from behind” and that he is displaying, in the words of House Speaker John A. Boehner (R-Ohio), “the arrogance of power.”
Some of his friends are a bit confused, as well.
“He’s a smart guy, a scholarly guy, but I can’t figure him out,” said Rep. Steve Cohen (D-Tenn.), who has been unsuccessfully pushing for Obama to use his pardoning powers more aggressively to release nonviolent drug offenders from prison.
Obama’s current and former advisers said the president’s approach is deliberate and coherent: On national security, he exercises power to keep the country safe, whereas on domestic issues, he acts strategically on a case-by-case basis.
Still, the advisers acknowledge, Obama’s sometimes-yes, sometimes-no approach can give the appearance that he’s all over the map. Four-and-a-half years in, they said, he still is figuring out how to strike the right balance.
“He is deeply concerned both that his office . . . never violate its primary duty to abide by the Constitution’s checks and balances and that he nonetheless exercise those powers to the limit as needed to protect the nation and its people,” said Laurence Tribe, a Harvard Law professor who has been a mentor of Obama’s for two decades and served briefly in Obama’s Justice Department.
Still, Tribe expressed concern that Obama, himself a former law instructor, “is being a bit too much the constitutional lawyer in some of these matters and not enough the ordinary citizen, sharing the anger that ordinary citizens understandably feel but flexing the muscles that no citizen other than Barack Obama possesses.”
Obama came into office promising to rein in what he and other Democrats charged were frequent overreaches of executive authority by George W. Bush’s administration. He vowed to strive for non-ideological, bipartisan solutions to problems.
In practice, Obama followed Bush’s lead when it came to executive power in fighting terrorism and other areas. His administration invoked the state-secrets privilege to avoid disclosing information when challenged in court, and Obama asserted executive privilege to withhold information from Congress amid questions about the Fast and Furious gun-tracking operation. He adopted a more aggressive stance on domestic policy after Republicans won control of the House in 2010, directing staff to look for ways to use administrative actions as end runs around a polarized Congress.
Obama’s advisers said the president thinks about executive power strategically and is willing to exert it fully — such as on environmental regulation — if doing so helps him move past obstacles on Capitol Hill and achieve specific objectives.
“The president is always looking for ways to use his executive authority to advance his policy agenda,” White House senior adviser Dan Pfeiffer said.
For instance, Obama has forced changes in state-level education policy in a way past presidents have not. His Race to the Top program awarded billions of dollars in federal grants to select states that agreed to seek reforms based on administration standards for increasing school assessments, using data and improving teacher quality. The administration gained additional leverage on education by laying out specific requirements for states to receive waivers from penalties required by the No Child Left Behind Act, giving Obama a say in how states designed new programs to monitor and fix low-performing schools.
And Obama is likely to exert his power again in the coming months, when he decides whether to add new regulations on greenhouse gas emissions from power plants.
Yet, the string of recent controversies has also illustrated a downside to Obama’s philosophy — that he is seen as inconsistent or weak, and that even his natural allies on Capitol Hill can’t predict whether the president will stand firm or back down.
Cohen’s frustrations were on display last week, when he asked Attorney General Eric H. Holder Jr. during a House committee hearing why the administration chose to leave in place a Bush appointee to lead Justice’s pardon division.
Cohen, who represents a heavily African American district in the Memphis area, said he could not understand why the president had so far not used his full powers to correct what many see as racial inequities, given that black men would be a big beneficiary.
“He could be the Emancipator Part Two,” Cohen said. But, he added, “he’s cautious. I guess it’s part of having been a professor.”
Some liberals were frustrated with Obama’s unwillingness to use his power in 2011 at the height of the showdown between the White House and GOP lawmakers over raising the debt ceiling. House Republicans were threatening to block the borrowing limit increase unless Obama agreed to major spending cuts to Medicare and Social Security.
Many Democrats believed Obama should have used his executive authority to lift the debt ceiling — a move advocates argued was legal under the 14th Amendment. Former president Bill Clinton said at the time he would have invoked that authority and “force the courts to stop me.”
Even the threat of invoking the 14th Amendment would have neutralized the GOP’s leverage, many felt. And yet Obama, believing such a move to be unconstitutional, ruled out the idea. White House aides said it was not only illegal, but also impractical for the president to take such a drastic step.
William Howell, a University of Chicago political scientist, cites the episode as a low point for Obama in a new book titled, “Thinking About the Presidency: The Primacy of Power.”
“He may have been right on his concerns about constitutionality, but it was costly,” Howell said. “There was a sense of executive impotence in a heightened moment of crisis.”
Robert Dallek, a presidential historian whom Obama has hosted for dinner in the White House several times, contrasted Obama — “not a compulsive-detail guy,” Dallek said — with earlier presidents, such as Lyndon B. Johnson and Jimmy Carter, who were known to micromanage the bureaucracy.
“Presidents appoint people to high office, and what goes with it is a vote of confidence that they are going to perform sensibly and legally,” Dallek said. “But Johnson being Johnson knew the ways of Washington and [knew] there were always some bad apples there, so he sent out directives.”
Too well insulated?
The scandals of the Nixon administration that followed resulted in the IRS becoming an independent enforcement agency — a fact White House aides cite as a justification for Obama’s not knowing what was going on there until the release of an independent watchdog report. And in the post-Watergate era, presidents and their political aides have steered clear of the agency’s day-to-day operations.
Obama, his allies said, has adhered to that norm more rigorously than some of his predecessors. Moreover, advisers say, Obama does not interfere with Justice Department investigations, such as the leak probe that led to the surveillance of AP reporters.
Aides say it was an unfortunate coincidence that two controversies erupted simultaneously in areas that do not necessarily fall under Obama’s direct power. Yet that reality also may have effectively shielded Obama from learning about red flags that arise beyond the bubble of the Oval Office.
“It’s one thing for the president to make sure he doesn’t say or do anything that might undermine the independence of agencies like the Justice Department or the IRS,” Tribe said. “It’s quite another for the president to insulate himself to a degree that creates the false public impression of disinterest or indifference.”
Scott Wilson contributed to this report.
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