“We’re not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help they need," Obama said. "I’ve got a pen, and I’ve got a phone."
Obama argued repeatedly that he needed to act unilaterally in lieu of legislation from Congress: "One of the things that I’m going to be talking to my Cabinet about is how do we use all the tools available to us — not just legislation — in order to advance a mission that I think unifies all Americans." He even launched a web page called "We Can't Wait."
Of course, the downside to Obama doing this is precisely what we see today: Republicans using it to justify their own president's bold executive orders. It's pretty much the same situation we saw with the Senate and the nuclear option. Then-Senate Majority Leader Harry Reid (D-Nev.) got rid of the 60-vote threshold for non-Supreme Court appointees in 2013 when Democrats had the majority and it seemed like a good idea; today, with Republicans nabbing the presidency and controlling the Senate — and possibly going even more nuclear — it seems like considerably less of a good idea.
But is the comparison fair? Did Obama really pave the way for what Trump as doing today? Certainly, in some ways.
As I wrote in my explainer on executive orders last week, the true measure of them isn't so much the quantity, but rather the quality — a subjective measure, to be sure. As the chart above shows, Obama didn't really accelerate his number of executive orders after those comments in January 2014.
But he did go further in the ones he did sign. A month after his announcement, he upped the minimum wage for federal workers. He added other protections for federal workers, including sick days and LGBT non-discrimination executive orders. By November of that year, he had halted deportations for millions of undocumented immigrants. In both of these cases, the Obama administration did things it had previously determined it could not do legally -- and the latter has since been blocked by the courts. In 2016, he took actions on gun control in response to Congress's failure to heed his calls.
For a summation of all of it, here's how New York Times reflected in-depth on Obama's presidency back in August:
In nearly eight years in office, President Obama has sought to reshape the nation with a sweeping assertion of executive authority and a canon of regulations that have inserted the United States government more deeply into American life.Once a presidential candidate with deep misgivings about executive power, Mr. Obama will leave the White House as one of the most prolific authors of major regulations in presidential history.
Against that backdrop, it would seem Democrats don't have much of a leg to stand on when it comes to criticizing Trump's methods — if not the actual orders. But while the orders have been splashy, some aren't hugely impactful by themselves; Trump's executive orders on building a border wall and beginning the repeal of Obamacare, for instance, will be incomplete without congressional action. His just-instituted travel ban is the big exception here, of course, sowing instant chaos this weekend and drawing fire even from some Republicans.
But there's one big difference between the two presidents' approach to executive authority: Obama did these things in response to a divided Congress that wasn't going along with his wishes after five years. Trump is doing them right away, even as he has Republican majorities in both chambers. And now Republicans are mad about not even being consulted on the travel ban.
The whole thing says a lot about Trump, who is a noted admirer of authoritarian leaders and who has promised to do great things almost by sheer force of will. He doesn't feel the need to justify his executive orders by pointing to an intransigent Congress. He's not waiting for Democrats to try to stop him with filibusters or Republicans to grow weary of divisive policies like his travel ban. He's just doing it himself, right away. And even Republicans are a little uneasy with his level of initiative.
When dealing with anything as amorphous as executive authority, views of just how far a president has gone will naturally be colored by partisanship. Just as Democrats think Trump's travel ban runs afoul of the Constitution because it amounts to a religious test, Republicans believed Obama was effectively instituting his own comprehensive immigration reform with his deportation actions. Both were cardinal sins for each side, and at least in the latter cast, the courts have backed up that assertion.
And just as it has been with Obama's deportation actions, it seems the ultimate judge of whether Trump takes it too far will be the courts — courts that Trump will begin stocking at the highest level with his nomination of a Supreme Court justice on Tuesday night.
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