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How much power can the president wield by sidestepping Congress?

June 18, 2014 at 6:45 PM EDT
Facing partisan gridlock, President Obama has bypassed Congress by using executive actions on issues like equal pay, student loans and carbon pollution. But each order faces backlash that the president has overstepped his power. Jeffrey Brown gets debate from Jonathan Turley of The George Washington University and Michael Waldman of the Brennan Center for Justice.
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GWEN IFILL: This week, the White House has announced three separate executive actions dealing with gay rights, the environment, and manufacturing, raising the question, in the midst of partisan gridlock, how much can the president do without Congress?

Jeffrey Brown has that debate.

JEFFREY BROWN: President Obama has been expanding these executive actions. It’s something he promised to do earlier this year.

PRESIDENT BARACK OBAMA: 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. I have got a pen and I have got a phone.

JEFFREY BROWN: And he’s followed through, on a wide range of issues, including equal pay for women, student loans, and more recently carbon pollution.

But every time President Obama does this, he’s faced backlash from those who charge that he’s an imperial president.

We have our own debate on the subject now, with Jonathan Turley, a law professor at George Washington University, and Michael Waldman, president of the Brennan Center for Justice at New York University’s School of Law.

Welcome to both of you.

Jonathan Turley, start with you. You made the case that these actions by President Obama have gone too far. What have you seen?

JONATHAN TURLEY, George Washington University: Well, certainly, he didn’t start this process, the concentration of authority in the executive branch, but it has reached a level that frankly is a matter of concern.

You know, our system is designed primarily to avoid one central danger, and that is the aggregation of power in any one branch, and what we’re seeing, particularly in the Obama administration, is this rise of a type of uber-presidency, this president who can govern alone.

And when the president said to Congress in his State of the Union I intend to effectively circumvent you, I was astonished to hear applause. It was almost self-loathing from Congress as they applauded a president who said I intend to effectively make you a nonentity.

JEFFREY BROWN: All right, we will walk through some of these.

But, first, Michael Waldman, a response. What do you see happening?

MICHAEL WALDMAN, Brennan Center for Justice: I’m considerably less concerned about it.

And, in fact, I think that given divided government and not a hostile Congress, but a completely paralyzed Congress, this president doesn’t have much choice within the bounds of the law. He’s using executive action, especially in his second term, just the same as President George W. Bush and Bill Clinton and Ronald Reagan did.

He, in effect, has I think a duty to seek his goals and advance his policies, again, within the Constitution, within the law and in public, without secrecy. But I’m considerably untroubled by him acting to require contractors to not discriminate based on sexual orientation and that kind of thing, which sometimes some people scream Mussolini every time he does something like that.

JEFFREY BROWN: If you look at the numbers, Jonathan Turley — we have got a graphic here of recent American presidents — it doesn’t look like he’s overdone it. Is it a numbers question? What troubles you?

JONATHAN TURLEY: It’s not.

And the thing is, I think it’s silly to compare the actual numbers of executive orders. In fact, when this came up the last time I testified in Congress, and I told Congress you can’t simply look at the number of executive orders. You could have a single executive order that changes the very essence of our system.

JEFFREY BROWN: So, it’s not the number, it’s the quality or the kind or…

JONATHAN TURLEY: That’s right.

And the White House White House that I was testifying with agreed with that, and was asked, and said, no, it’s true. It really doesn’t come down to how many executive orders have been issued, but what type.

JEFFREY BROWN: So you’re saying, in this instance, in this administration, it’s certain kinds that have gone too far, not the number?

JONATHAN TURLEY: That’s very — that’s absolutely correct.

JEFFREY BROWN: So, give us an example.

JONATHAN TURLEY: An example is the president has essentially rewritten some laws like the health care law, the ACA, by changing its meaning, not just on its starting date, but core issues in terms of the obligations of classes of parties that have to function under the act.

He shifted $454 million in that act from the legislative purpose to an entirely different purpose. On immigration, he ordered the agencies not to enforce the immigration laws against an entire class of individuals.

It’s a rather long line. It’s a difference of magnitude that we have seen with this president.

JEFFREY BROWN: Well, Michael Waldman, go ahead. I can see you’re…

MICHAEL WALDMAN: I’m afraid I don’t agree with that.

For starters, as that list showed, he was actually, in the first term, quite timid in many respects in using his executive power. The number of executive orders tells a story. It’s not the only story. Sometimes, you count calories and sometimes you count carbs.

I’m not aware of any executive actions that he took that were akin to seizing the steel mills or any of the other kinds of things that other presidents have done in the past that have raised many questions.

And a lot of the things that he has done have been in the nature of phase-ins and the other very typical things that presidents do when they’re implementing complex statutes, such as the health care law, or making priority decisions about what kinds of deportations to do and that sort of thing.

I’m actually puzzled by the degree of hyperventilation that sometimes we hear about this. My concern first off is how we can get Congress to not be as paralyzed as it has made itself with the supermajority requirement of 60 votes to move anything.

And I actually think there are things the president has not acted on that he could act on.

JEFFREY BROWN: Well, me — go ahead. Finish.

MICHAEL WALDMAN: Voting — on voting, for example, he’s talked a lot about voting rights, but he could designate federal departments as voter registration agencies under existing law and help register many, many Americans.

I think there are things he could continue to do. And I’m just untroubled. I think it’s actually, in many respects, not always, but in many respects, an encouraging development.

JEFFREY BROWN: Well, Jonathan Turley, in a system of gridlock, is what Michael — one of Michael Waldman’s point — what else is he supposed to do?

JONATHAN TURLEY: Where I disagree fundamentally with Michael is that there’s a reason things are not getting done right now.

We’re a divided nation. We’re divided on these very areas. And when we’re divided, fewer things get done. And some would say that’s a good thing because we can’t come together. But the system is designed to force compromise.

And I think, even though Michael says he’s not troubled by this, I’m quite astonished the position of Democrats on this. They will rue the day that they created this type of presidency within our system. This is not going to be our last president. But Democrats are acting like the next two years are the only two years left. They don’t know who the next president will be. And he’s going to exercise all of these powers.

JEFFREY BROWN: All right.

Well, Michael Waldman, a last word then. Are you — might this blow back the next time you face a president that you don’t like?

MICHAEL WALDMAN: Well, I’m sure that, whether it’s President Rand Paul or President Hillary Clinton or whoever else it might be, first off, they need to follow the law.

Second, people will scream over each, no matter what they do. I am concerned, especially when it comes to foreign policy and terrorism-fighting, that presidents of both parties, Bush and Obama, have reached beyond their authority.

And I am concerned especially, for example, about the kind of surveillance practices through the executive branch that do warrant the kind of reaction that we are seeing from the American public.

JEFFREY BROWN: All right, we will leave the argument there.

Michael Waldman and Jonathan Turley, thanks so much.

JONATHAN TURLEY: Thank you.

MICHAEL WALDMAN: Thank you.

JEFFREY BROWN: And if you’re interested in learning more, you can check the NewsHour online, where you can see how every president from George Washington on has used executive actions.