By stonewalling new laws and new budgets, Congress handed control to the White House.
Republicans over the past seven years have come to view Barack Obama not just as an ideological enemy but as a “dictator”—an accusation hurled most recently by both Chris Christie and Glenn Beck—a president who has unconstitutionally abused his executive power with an array of unilateral actions.
But Republicans are hardly passive victims of an overweening executive; they are, in fact, paying for their own unilateral surrender of power. The GOP-dominated Congress has sought to weaken and undermine Obama and instead has achieved the opposite. Unable to pass significant legislation after the Affordable Care Act, the Obama White House filled the vacuum by creative use of executive authority, setting a potentially risky precedent for the future balance between the branches but spurred, ironically, by the very opponents who were trying to contain him.
Out of anti-Obama pique, Congress has also relinquished much of its primary tool, the power of the purse. Congress and the White House have not agreed on a budget since 2009, and only at the end of 2015 was an actual budget passed by the House. So while it is technically true that even the most controversial military programs of the Obama years have had de facto congressional support, Congress has failed to use its constitutional control of the budget as a check on executive action.
Some critics also currently speculate that the refusal by most Republican senators to even consider the new nominee for the Supreme Court could lead to an attempt to simply place an appointee on the court. Obama could use the novel interpretation that nothing in the Constitution says the Senate must actually confirm a nominee by vote and that failing to vote could be construed as a tacit and passive approval of a nominee. Were that to happen, it would surely be condemned by Republicans as a naked power grab, but it could also set another precedent for the current imbalance of power between the executive and legislative branches.
Thus, the long-run effect of Obama enmity has been to enable this president to expand the power of the executive branch, perhaps permanently. Not only did Republicans fail to contain Obama, they have enabled him to become one of the most powerful presidents ever, and certainly the most powerful non-wartime president the country has ever known as well as the most active and consequential “lame duck” president in memory.
When it comes to the power game, whether or not Obama has been making good or bad decisions is beside the point. He has won, while the GOP has been scoring own goals for the past seven years.
Starting in 2009, the Republicans in Congress adopted a simple, coherent strategy of resisting anything Obama proposed. “If he was for it,” said former Ohio Senator George Voinovich, “we had to be against it.” Only one Republican senator voted for the Affordable Care Act, Senator Scot Brown from Massachusetts, and no House Republicans. After 2012, with healthy majorities, Republicans voted to repeal the law dozens of times, with no hope that such moves would have any effect other than to register opposition. The near debt default in 2011 to the Ted Cruz-led shutdown in 2013 to the current refusal to hold hearings for the Supreme Court seat vacated by Antonin Scalia’s death have continued that trend.
But the so-called Party of No only provoked the Obama administration into finding innovative ways to exercise power in everything from environmental regulations to student loans to immigration to the fiduciary standard in financial services, from more expansive workplace leave for new mothers to minimum wages for federal contractors, not to mention extensive use of drone warfare and a host of new cyber initiatives. Rather than containing the White House, congressional Republicans liberated it.
Just over 40 years ago, the late Arthur Schlesinger coined the term “the imperial presidency” to describe the gradual accretion of power to the executive branch in the 20th century. Typically, Schlesinger argued, presidents accrued more power in times of crisis such as the Civil War or the Great Depression, and then that power was rolled back after the crisis abated. 9/11 saw the beginning of the current move toward an imperial presidency, as George W. Bush keyed off the crisis to expand executive authority in national security and domestic surveillance. In that, his administration had the tacit support of Congress, and for a time, a considerable portion of the public.
Obama has built on that legacy and expanded the scope of the executive in domestic policy. It’s been a staple of right-wing radio to point to the use of executive orders, but Obama has not actually issued an atypically large number; in fact, he lags the pace of most 20th century presidents in executive orders. He has made aggressive use of “presidential memoranda,” which have much the same import. To date, he has issued nearly 500 of those, which is far more than any previous president.
The ever-widening scope of unilateral executive action in national security has certainly been aided by the other branches. The broad implementation of drone warfare (hundreds of strikes over the past five years) would have been stymied were it not for judges and tribunals that have given the executive, the CIA and the military wide latitude. And all these programs require congressional funding, but because of the repeated budget crises the GOP has not been able to exercise as much leverage as it might have otherwise.
Republicans have railed at everything from aspects of national security strategy (Libya most notably and the Iran nuclear deal vying close behind) to the Consumer Financial Protection Bureau, but in not passing a budget that would either have funded or defunded such objectionable agencies and policies, Republicans have perversely facilitated programs that they might otherwise have terminated or at least curtailed had they used the full scope of their budgetary authority.
In the nature-abhors-a-vacuum vein, the Obama administration thus used the presidential pen to change immigration polices on deportation and enforcement of existing laws, to expand environmental regulations to force changes in coal-fired electric plants, to reduce access to guns in an effort to cut down on gun violence (two dozen executive orders), to equalize the rights of same-sex couples, and a host of other issues.
All this has also significantly raised the stakes for the current election and why there is such concern about Donald Trump or any number of other contenders. In 1921, Warren Harding, a middling political hack whose suitability for the Oval Office was never in question (almost none thought him suitable), became president. Only an untimely death saved Harding from drowning in a sea of scandals. Few, however, viewed a Harding presidency as a threat to the republic. The presidency in those years, after an increase during World War I, was limited in what it could do, and hence the occupant of the office mattered less in the greater scheme of things.
Today, the reverse is true. The presidency has become so powerful that it matters greatly who occupies the office. In almost any reading of our history and precedent, the president has become too powerful. The threat to our security, therefore, is not that someone ill-suited and unpredictable wins the office; it is that the office has become so outsized and so unbound that we are vulnerable to that possibility. Fear of executive power was one of the animating features of most of the Founding Fathers. Though their wisdom was incomplete, on that, they were spot on.
Obama bears his share of responsibility for taking power where he could, but had the Republican Congress attempted to do more than thwart him, he would not have been able to.
That makes who we elect now more important than ever. And perhaps Congress will think twice in the future about surrendering more power to the president.