Obama's precedent-setting executive power grab

Since the summer of 2011, Obama’s relationship with Congress, and with his own power, has undergone a fundamental shift. As a candidate, Obama decried George W. Bush’s “my way or the highway” approach to governing. But while Obama has dialed back many of Bush’s overseas excesses, the record level of congressional obstruction at home has compelled the president to expand his domestic authority in ways that his predecessor never did.

In February 2011, Obama announced that his administration would stop defending the Defense of Marriage Act in court, sparking controversy about whether he was shirking his duty to faithfully execute the laws passed by Congress. The following spring, the president effectively implemented greenhouse-gas regulations stalled in the Senate by allowing the EPA to interpret existing law more broadly. In September, Obama issued waivers that released states from the onerous requirements of No Child Left Behind but bound them to the administration’s own education policies, which Congress had not passed. A similar set of welfare waivers soon followed. And in early 2012 the president bypassed the usual confirmation process to make four recess appointments even though the Senate had been holding pro forma sessions to block them. “This isn’t just pushing the envelope,” says Charles Tiefer, a former lawyer for the House of Representatives who now teaches constitutional law at the University of Baltimore, “but in effect breaking out of the envelope.”…

Taken individually, none of Obama’s unilateral maneuvers are particularly outrageous; presidents have been making similar moves for decades now. And yet together they represent a break from the past. Unlike most his predecessors—think FDR inventing the modern administrative state during the Great Depression, or Bush pushing the limits of torture and surveillance after Sept. 11—Obama is not expanding executive power to meet the demands of an external crisis. Instead, he is counteracting a new pattern of partisan behavior—nonstop congressional obstruction—with a new, partisan pattern of his own.

The result is an extraconstitutional arms race of sorts: a new normal that habitually circumvents the legislative process envisioned by the Framers. On one side of the aisle, Republicans are providing a blueprint for minority parties to come, demonstrating how it is possible, and politically advantageous, to use procedural tricks to incapacitate a president they oppose. On the other side of the aisle, Obama is drafting a playbook for future presidents to deploy in response: How to Get What You Want Even If Congress Won’t Give It to You. “Obama is the first president to use his unilateral powers so routinely, especially in the domestic sphere,” says University of Virginia presidential scholar Sidney Milkis, a self-described moderate Democrat. “And in some ways, that may be more insidious than what came before.”