Deflecting the potent charge that President Obama has of late begun to behave as might a prince, progressives tend to fall back on the numbers. “Not all executive orders are illegal,” they will note, and then they will explain with studied irritation that Obama has signed fewer such decrees than any president in the last century.
Both of these arguments have always seemed rather desperate. For a start, one examines the legality of a given action on its own merits, not within the context of other, unrelated measures. Moreover, the question of legitimate presidential power being a qualitative and not a quantitative one, how many times the executive has contrived to act alone seems to be entirely beside the point. Suppose that a rogue president decided to drop a nuclear weapon on San Francisco. In such a case, would his apologists point out that he had “only ever issued one executive order, which is far fewer than almost every other president”? Of course they would not. We judge legality by the law, not mathematically.
And yet, politically speaking, there’s something to the idea. For a while now, the claim that Obama has been unusually reluctant to act alone has been presented as evidence that he is running a modest and restrained administration. “Obama,” New York magazine’s Dan Emira wrote back in January of 2013, “has used this lever of presidential power less frequently than every other president in modern times.” “In fact,” he added, “you have to go all the way back to Grover Cleveland in the nineteenth century to find a president who has issued executive orders at a lower rate than Obama.” Emira’s proposition here was clear: That the White House’s aristarchs should not be so “riled up,” that the suggestion that Obama was behaving “like a king or a monarch” was downright false, and that conservatives who claim that this administration has represented a dangerous departure from the American settlement are merely revealing their own partisanship. Indeed, such talking points have been heard from the president himself. Speaking in Texas last July, Obama mocked Republicans for their reaction to his impending immigration move, arguing that “even with all the actions I’ve taken this year, I’m issuing executive orders at the lowest rate in more than 100 years.”
If vetos and executive orders are a sign of weakness, we might conclude, then, that Obama is a powerful man indeed. And yet there is a tiny problem with this argument — one, I’d venture, that should change our calculation entirely: It simply isn’t true. As USA Today’s White House correspondent Gregory Korte recorded yesterday afternoon, one can really only regard Obama as a paragon of executive restraint if one indulges in a clever semantic game. Obama, Korte confirms,
has issued a form of executive action known as the presidential memorandum more often than any other president in history — using it to take unilateral action even as he has signed fewer executive orders.
When these two forms of directives are taken together, Obama is on track to take more high-level executive actions than any president since Harry Truman battled the “Do Nothing Congress” almost seven decades ago, according to a USA TODAY review of presidential documents.
“Like executive orders,” Korte explains, “presidential memoranda don’t require action by Congress.” Nevertheless, “they have the same force of law as executive orders and often have consequences just as far-reaching.” How far reaching? Well, Korte proposes, “some of the most significant actions of the Obama presidency have come not by executive order but by presidential memoranda.”
Now, this game is not in and of itself illegal — although it certainly drives another nail into the notion that Obama’s is the “most transparent” presidential administration “in history” – and the fact that this president has been the most active since Harry Truman does not render his actions unacceptable per se. Nonetheless, that he has been so quick to pick up his pen does tell us something interesting: specifically, that the Barack Obama who was going to change Washington and win hearts and minds with his soaring oratory has instead relied upon unilateral power to an unanticipated degree. Having recently signed a historically unprecedented and constitutionally dubious immigration order, quixotically attempted to cut the Senate out of the treaty-making process, and reversed a half-century-old American policy toward Cuba, the president is apparently looking to see where else he can work without the legislature. Now into his final two years, Politico reports today, Obama increasingly “feels liberated,” and he “sees the recent flurry of aggressive executive action and deal-making as a pivot for him to spend his final two years in office being more the president he always wanted to be.”
This, of course, is his prerogative. Providing he doesn’t do anything illegal, a president may use his enumerated powers to his heart’s content. But it must surely be disappointing for this president’s champions to watch his tenure descend into unilateralism and isolation? During his initial run for the White House, Senator Obama liked to slam George W. Bush for having attempted to “bring more and more power into the executive branch and not go through Congress at all.” If elected, Obama told his audiences, he would “reverse” this course. In office, however, he has done no such thing. Indeed, not only has Obama moved far, far beyond his predecessor’s limited imperial proclivities, but he has also constructed and codified a collection of extra-constitutional arguments that will haunt the country for years to come. Critics of the contemporary Republican party would most likely argue that the often implacable opposition that Obama has faced is at least in part to blame for the president’s volte face. There is something to this, albeit the case is wildly overstated. By contrast, Obama’s detractors would presumably contend that the fault lies with Obama himself. Because he is temperamentally incapable of shifting with the electoral winds, they would propose, and because he showcases such blatant disregard toward the republic’s longstanding constitutional norms, he represents a problem case that no amount of legislative acquiescence could defray.
All in all, the truth probably lies somewhere in the middle. Nevertheless, whichever of these cases one finds more convincing, one thing at least should be glaringly obvious to all and sundry: to wit, that for all the hype, the man just isn’t that good at politics. In a representative government such as ours, there is a good deal of space between the machine in Washington, D.C., and the public at large. If one so wishes, one can certainly blame the fractious passing of Obamacare on party-wide Republican intransigence and the supposed ideological “extremism” of the right-leaning political class writ large. “When Republicans had announced that they would refuse to work with the president,” we could say, “what did you expect to happen?” But how, then, do we explain away the stubborn refusal of the American public to change its mind? It has now been more than four years since Obamacare was signed into law, and almost six years since the president began routinely stumping for his plan. Despite the incessant propaganda campaign, it is more unpopular now than it ever was. Likewise, if one were so minded, one could contend that Obama “had to do something” about the “immigration crisis,” and that Congress’s steadfast refusal to act had forced the president’s hand. Again, though, one wonders how we should explain the unpopularity of Obama’s action, and his inability to move public opinion sufficiently strongly in his direction to put pressure on his opponents in the legislature.
The simple answer is this: We can’t. Instead, we should perhaps accept that there is a great deal of space between Obama the idea and Obama the president. Far from being a strong leader who has been forced to deal with an obstinate minority, Obama is coming to resemble the man who couldn’t sell a bottle of gin to Peter O’Toole. That he sees this lame-duck period as an opportunity to become “the president he always wanted to be” is illustrative indeed. Strip away all of the glitz and the hype and we are left with a man who came into power to heal and to restore but who has assiduously failed to recruit the other branches of government to his cause, who has been routinely unable to win the approval of the American public, and who has, on the cusp of his seventh year, been left sitting alone in his splendid office, writing sweeping instructions on leaves of ornately adorned paper, and remembering those happy days when the people who elected him twice believed that he was going to bring them along for the ride.
— Charles C. W. Cooke is a staff writer at National Review.
EDITOR’S NOTE: This article has been amended since its initial publication.