Political constraints on unilateral executive action.

AuthorChristenson, Dino P.
PositionSymposium: Executive Discretion and the Administrative State

ABSTRACT

Pundits, politicians, and scholars alike have decried the dramatic expansion of presidential unilateral power in recent decades. Such brazen assertions, against which Congress and the courts have offered seemingly feckless resistance, have led many to decry the emergence of a new "imperial presidency." From a political science perspective, however, perhaps the more puzzling question is the relative paucity, not the proliferation of unilateral actions. Why do presidents not act unilaterally to bring an even wider range of policies into closer alignment with their preferences? The dominant paradigm in political science scholarship emphasizes Congress's institutional weakness when confronting the unilateral president. It correctly notes that presidents, in all but the rarest of circumstances, can act with impunity, secure in the knowledge that legislative efforts to undo their unilateral initiatives will fail. However, much scholarship overlooks the critical importance of political costs in constraining the unilateral president, and how other institutions--even when they cannot legally compel the president to change course--can affect presidential strategic calculations by raising these costs. We illustrate our argument with a pair of case studies: President Obama's halting unilateral policy response to the immigration crisis, and his abrupt about-face on unilateral action against the Assad regime in Syria. In these cases, we argue that calculations about the informal political costs of unilateral action affected both the timing and content of presidential policy decisions. When contemplating unilateral action, presidents anticipate more than whether they can defeat legislative efforts to overturn their unilateral initiatives. They also consider the political costs of acting unilaterally and weigh them against the benefits of doing so. Paying greater attention to these political constraints on unilateral action affords a more accurate picture of the place of the unilateral presidency within our separation of powers system in the contemporary era.

CONTENTS INTRODUCTION I. FORMAL THEORY AND PRESIDENTIAL UNILATERAL POWER II. THE POLITICAL COSTS OF UNILATERAL ACTION III. CASE STUDY: OBAMA AND IMMIGRATION IV. CASE STUDY: OBAMA AND THE SYRIAN CIVIL WAR CONCLUSION INTRODUCTION

On July 10, 2014, the Speaker of the House, John Boehner, disclosed his intention to file suit against President Barack Obama for allegedly wanton abuse of presidential power in acting unilaterally to delay the employer mandate provision of the Affordable Care Act, fundamentally amending the law as passed absent any legislative authorization for the change. Echoing many congressional critics of unilateral presidential action before him, Speaker Boehner lamented, "The current president believes he has the power to make his own laws--at times even boasting about it. He has said that if Congress won't make the laws he wants, he'll go ahead and make them himself, and in the case of the employer mandate in his health care law, that's exactly what he did." (1)

Bold assertions of unilateral presidential authority have been prominent features of the American political landscape almost since the Founding. The assertion and exercise of unilateral presidential power has been one of the hallmarks of American politics in the post-9/11 era. Without waiting for congressional action, President Bush determined that the Geneva Convention did not apply to Taliban and A1 Qaeda prisoners and created a system of military tribunals to try those suspected of terrorism outside the civilian judicial system. With a topsecret National Security Decision Directive, President Bush authorized the National Security Agency to eavesdrop on the electronic communications of American citizens without a warrant, in plain violation of the Foreign Intelligence Surveillance Act of 1978. (2)

Far from providing a clear break from the unilateral bent of his predecessor, President Obama has followed in his footsteps and used the unilateral toolkit at his disposal to advance both his foreign and domestic policy initiatives. While a United States Senator and presidential candidate, Obama emphasized the constitutional limits on the president's unilateral powers as commander in chief, stating that "[t]he president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation." (3) However, Obama would later change his tune. For example, in 2011, now President Obama, backed by the Office of Legal Counsel, argued that he possessed independent constitutional authority to intervene militarily in Libya without congressional approval because the mission was tied to a national interest, even if the crisis in Libya plainly did not involve an actual or imminent threat to the United States itself. (4) Similarly, when contemplating military strikes against the Assad regime in Syria for its use of chemical weapons, the Obama administration articulated a legal justification for unilateral intervention because of vital national interests in enforcing international norms against the use of chemical weapons. (5) In the domestic sphere, President Obama acted unilaterally to exempt states from the Temporary Assistance to Needy Families program's work requirement, to instruct the Justice Department not to prosecute marijuana offenders in states where its use has been decriminalized and, as we will discuss in detail shortly, to implement through administrative memorandum much of the Development, Relief, and Education for Alien Minors (DREAM) Act, which failed to pass both chambers of Congress. (6)

Many legal scholars warn that this expansion of presidential unilateral power is a threat to the separation of powers. In 2014 testimony before the House Judiciary Committee, Jonathan Turley argued that it represents "a massive gravitational shift of authority to the Executive Branch that threatens the stability and functionality of our tripartite system." Turley acknowledges that the shift did not begin with Obama; "[h]owever, it has accelerated at an alarming pace under this administration." (7)

Empirically driven scholarship in political science confirms that recent presidents have exerted their unilateral powers with unparalleled frequency. (8) Indeed, William Howell has argued that "the ability to act unilaterally speaks to what is distinctively 'modern' about the modern presidency." (9) The rise of presidential assertions of unilateral power frequently produces jeremiads lamenting the failure of Madisonian checks and balances and the search for answers as to why the other branches have failed to defend their institutional prerogatives from such naked presidential power grabs. (10) From a political science perspective, however, perhaps the more puzzling question is the relative paucity, not the proliferation, of unilateral actions.

The dominant scholarly paradigm is clear: presidential unilateral power is not absolute. Rather, the president's capacity to affect the course and contours of public policy unilaterally is conditional on the willingness of Congress and the courts to check unilateral measures. However, given the institutional weaknesses and reluctance of both the legislature and judiciary to overturn presidential unilateral initiatives, presidents should be able to act with impunity in all but the rarest of circumstances. As a result, this Article flips the question on its head. It does not ask why presidents are able to achieve so much unilaterally in our separation of powers system, when we might logically expect the other branches to contest presidential aggrandizement using all constitutional means at their disposal. Rather, we seek insight into why presidents do not use the instruments in their unilateral toolkit with even greater frequency to address a wide range of policy priorities.

The reason for presidential caution, we argue, is that presidents are far more concerned about the informal constraints on unilateral action--mainly the political costs of going it alone--than they are about being formally overturned by new legislation or a judicial decision. These informal constraints are all but absent from most formal models of unilateral politics.

The Article proceeds in five parts. Part I traces the evolution of political science scholarship on unilateral powers over time, from early accounts paying them scant attention to modern scholarship highlighting these tools as a foundation of presidential power in the contemporary era. It then unpacks the dominant game theoretic approach toward understanding unilateral politics; this perspective suggests that presidents have a capacity to act unilaterally that is all but unchecked by other political actors. Part II presents our counterargument that by failing to account for public opinion and informal political costs, the dominant approach seriously overestimates the president's power to achieve his policy goals unilaterally and underestimates the capacity of Congress and the courts to constrain and even deter unilateral action. Parts III and IV illustrate our argument through a pair of case studies: an examination of President Obama's halting unilateral policy response to the immigration crisis, and an assessment of President Obama's abrupt about-face on unilateral action against the Assad regime in Syria.

  1. FORMAL THEORY AND PRESIDENTIAL UNILATERAL POWER

    Assertions of presidential unilateral power emerged almost immediately under our constitutional system. President Washington famously issued his Proclamation of Neutrality in 1793 and, in so doing, claimed for the executive the right to define the nation's foreign policy posture until Congress exercised its power to declare war. President Jefferson negotiated the Louisiana Purchase without any prior congressional approval. President Lincoln took many steps to put the...

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