The plot is always the same. The president sends Congress his list of legislative priorities. The divided Congress receiving the list laughs when they open it, and then throws the document in the shredder. Nothing gets done.
Suddenly, the president remembers the Constitution. Article II, specifically. Every president since George Washington has interpreted the document to allow executive orders, seeing in the phrase, "shall take Care that the Laws be faithfully executed" a whole world of political possibilities.
And then, he issues an executive order, or a memo, or some other directive steering policy closer toward where the White House hoped Congress would take it on their own (If you want to know more about the difference between executive orders and other types of White House actions, read this Philip Bump piece). Afterward commences much complaining, which is either added to the calcifying tower of disappointment already forming toward the president's administration, or it is forgotten forever, or both.
For that moment, however, Congress perceives the executive action (note: nowhere in this post does "executive action" refer to the 1973 Burt Lancaster film) taken by the president they've had the misfortune of working with as the worst devised in history. Sometimes the argument is over the use of executive orders, sometimes it is about presidential memoranda, but the fight is almost always about a difference in opinion, which leads Congress to think that another branch shouldn't have the authority to disagree with them.
In 1992, liberal activists crossed their fingers that President Clinton would be elected, bringing an end to what they saw as the executive actions-filled years of the Reagan and Bush administrations. Gary Bass, director of the watchdog group OMB Watch, told the Washington Post at the time that Reagan "'grabbed every lever that the executive power could give to exert control' and shift power from Congress to the executive." Ron Arnold at the Defense of Free Enterprise told the Post, "It's unbelievable the amount of power the president has just by himself."
Two years later, after Democrats lost disastrously in the midterms, Clinton seemed determined to push his policies despite gridlock, in the less-than-novel way of every president that preceded him. A senior official told the Post, "With Republicans in effective, if not actual, control, we can't be lashed to Congress anymore."
The article ended, "'What the American people will have is two competing agendas and the American people will force the president to accept ours, [Sen. Phil Gramm (R-Tex.)] said this week. To avoid that scenario, the White House has spent recent weeks searching Cabinet departments and agencies for executive actions Clinton can take without congressional acquiescence that would illuminate the centrist Democratic theme he rode into office."
Executive actions on environmental regulation, the welfare system and many other issues followed. Four years later the formula hadn't changed. According to the New York Times,
With some of his closest advisers deeply pessimistic about the chances of getting major legislation passed during the rest of the year, Mr. Clinton plans to issue a series of executive orders to demonstrate that he can still be effective.
''Stroke of the pen,'' Paul Begala, an aide to Mr. Clinton, said in summarizing the approach. ''Law of the land. Kind of cool.''
Fast-forward to the second Bush administration, and you see the same problem. The Washington Post reported in 2006,
The question in the White House is whether Democrats would be willing to be partners. While Democrats see Bush as relentlessly partisan, his aides think Democrats have been deliberately obstructionist even on issues of little dispute. Against that backdrop of mutual suspicion, the two sides may find it difficult to come together.
One Bush official floated executive orders as a path they might have to take if compromise failed. Questions of executive power, which had already been mounting for decades, were lobbed at the White House constantly as his foreign policy became less and less popular. In October 2008, Slate made a list of the "nine most odious executive orders issued by George W. Bush that the next administration should overturn."
The grumbling over executive power continued over the next six years, and this week -- as Obama plans to unveil an executive action on immigration -- offers good conditions to witness the divided government tango happen in nature. The Obama administration hasn't been too enamored of executive orders -- President Obama has signed fewer than any president since Grover Cleveland -- but he has taken executive action on issues where he was just asking for Republicans to yell at him. Since Congress hasn't done much to even look at his legislative priorities since the 2010 midterms, he called 2014 "a year of action" in his State of the Union address, and began drafting presidential memoranda and other actions that Congress wouldn't pass -- because most of them disagreed wholeheartedly with the president.
In response, Congress followed the script handed down for generations on what to do in response to executive action that didn't line up with their policy prerogatives.
Sen. Ted Cruz (R-Tex.) wrote an op-ed in the Wall Street Journal titled, "The Imperial Presidency of Barack Obama." Sen. John Cornyn (R-Tex.) wrote in National Review, "Under President Obama, inconvenient or unpopular legal requirements have repeatedly been swept aside by executive fiat." In June, Speaker John Boehner (Ohio) announced that he was planning to sue Obama over his executive actions.
The Obama administration has long considered taking executive action on immigration reform -- which would help millions of undocumented immigrants avoid deportation -- has led to renewed complaints from Republicans, perhaps the loudest yet. Rep. Steve King (R-Iowa) called the potential move, "a very, very serious threat to our Constitution and it is an impending constitutional crisis.” House Republicans are considering how they could strip any action of its funding in upcoming appropriations bills. Boehner is again thinking about the potential to sue.
Congress can pass legislation declaring a executive order, "should not have legal effect," according to the Congressional Research Service, which would of course risk presidential veto. Congress has altered less than 4 percent of executive orders.
These battles hardly ever transcend being little disagreements borne of partisan differences and merge into the actual tackling the larger questions of executive power that have led Congress to gripe about executive actions for decades. There's always the hope that the next president will be one you agree with more -- in which case executive orders become a more agreeable tool. Unilateral action doesn't even need to be unilaterally eradicated with the president you're grumbling about -- as long as they do things you like. During the crisis this summer over young undocumented immigrants crossing the border, Boehner released a statement saying, "There are numerous steps the president can and should be taking right now, without the need for congressional action, to secure our borders and ensure these children are returned swiftly and safely to their countries."
The number of avenues a president's opponents have to complain about executive actions have grown too. Not only that -- the perceived utility of complaining about executive power has ballooned too. The Republican Party did very well during the 2014 midterms by doing little but gasping in horror at the Obama administration. The sense in continuing that offensive until it stops working carries a dash of political logic, even if it is a strategy that doesn't translate well into governing. The result? Nothing gets done. Suddenly, the president remembers the Constitution. Wash rinse, elect a new president, and repeat.