President Obama Ignites Debate Over Executive Powers

In June, the president declared that his administration would stop deporting young people who had come into the U.S. as children and were seeking an education.  Calling it a “temporary stopgap measure,” President Obama said the executive action would make immigration policy “more fair, more efficient and more just.”

But Republicans complained the announcement may be an illegal move designed to win support in an election year.  Congress has been debating similar measures for over a decade in a proposed law known as the DREAM Act.

“The president’s action is an affront to the process of representative government by circumventing Congress and with a directive he may not have the authority to execute,” said Republican Senator Charles Grassley of Iowa. “It seems the president has put election-year politics above responsible policies.”

Republicans protest use of executive powers

	President Obama used executive power to support the decision of Eric Holder to withold documents from Congress.

In the same month, President Obama used executive privilege to refuse to release documents related to a controversial gun tracking program. Congress is investigating the government program, known as “Fast and Furious,” which provided guns to criminals in a botched attempt to track them. 

The president’s top lawyer, Attorney General Eric Holder, said that Congress was asking for emails and other documents that had nothing to do with Fast and Furious.

This is the first time President Obama has asserted his secrecy powers in response to a Congressional investigation. Republicans responded by accusing the administration of a “cover-up” and voting to file charges against Holder.

Checks and balances

	Many in Congress see the President's use of executive power as an overreach of the checks and balances system.

Executive power has a long history of creating conflict between the U.S. federal government’s three main branches: the executive branch (the president); the judicial branch (Supreme Court); and the legislative branch (Congress).  The tension is caused by a system of “checks and balances” laid out in the U.S. Constitution’s separation of powers doctrine, which states what each branch of government may do.

Each branch is meant to place “checks” on the others’ policy-making abilities, making sure that none of the branches get too powerful.

Executive privilege is not written out in the U.S. Constitution, but the Supreme Court has ruled that it is part of the separation of powers doctrine that enables the president and his staff to make decisions without having to reveal everything to the Congress and Judiciary.

The “imperial president”

	President Nixon was unable to use executive power to withold incriminating tapes about the scandal at the Watergate Hotel.

The most extreme Executive vs. Judicial throw down came in the early 1970s when President Richard Nixon used executive privilege to argue that he didn’t have to release audio recordings made of incriminating telephone conversations in the White House.

Nixon was eventually ordered to release the tapes because of the landmark 1974 Supreme Court decision United States v. Nixon, which put a limit on executive privilege and denied Nixon “an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” Nixon resigned from office 15 days after the Supreme Court decision, since the tapes showed that he had been involved in the cover up of a criminal break-in into Democratic Party headquarters known as the Watergate Scandal.

Other modern-day presidents have used executive privilege and issued executive orders as well. President George W. Bush notably invoked executive privilege over the questionable firing of seven U.S. attorneys and issued several executive orders related to environmental issues.