Coyote Blog

In any number of posts, I warned that, based on past precedent, Presidents almost never roll back executive power, even if they promised to do so in the election campaign.  For example, I wrote on innauguration day this year:

…thoughtful people already on day 1 should have evidence that things are the same as they ever were, just with better PR.   For God sakes, as his first expenditure of political capital, Obama is pushing for a trillion dollar government spending bill that is basically one big pork-fest that might make even Ted Stevens blush, a hodge-podge of every wish-list of leftish lobbyists that has been building up for eight years.  I will be suitably thrilled if the Obama administration renounces some of the creeping executive power grabs of the last 16 years, but he has been oddly silent about this.  It seems that creeping executive power is a lot more worrisome when someone else is in power.

Radley Balko writes:

My own hunch is that presidents try to keep campaign promises that expand the government and their own power, and either back down from or are unwilling to expend much capital on promises that make government smaller and more accountable, thus limiting their own power.

Looking over PolitiFact’s report card on Obama’s campaign promises, that seems to be about right thus far. By my count (and some of this is certainly subjective) of the of the 31 promises the site says Obama has kept thus far, 20 in some way grow or expand the federal government. Just six make the government smaller, more transparent, or more accountable. The remaining five have no effect, or amount to a wash.

Of the six campaign promises PolitiFact says Obama has unquestionably broken, five would have limited his own power, provided tax breaks, or provided more accountability and transparency to the federal government. One was mostly symbolic (recognizing the Armenian genocide). So far, he hasn’t broken a single promise that would grow or expand the government, though he has compromised on a few, and many have been stalled.

I have often criticized any number of recent Presidential administrations, in particular the Bush administration, for their various power grabs that attack the spirit, if not the letter, of Constitutional separation of powers.

One issue I have never really thought about, mainly because I really can’t stand thinking about political strategy and am not very good at it, is just how bad use of executive power can be in carrying off an ideological agenda.

I think many folks have become aware that there is a short list of executive orders that are the routine first step of any administration when the party in office has shifted.  I can’t remember them all — they include some abortion funding issues and some union rules issues — but Obama, like Bush before him and Clinton before him, issued them as one of his first acts.  Most of these aren’t world-shattering issues, and they act as a quick sop to the ideological base, but the whole point of the rule of law in this country was that we didn’t have to do the constant bob-and-weave people had to go through with Medieval kings or modern banana republics to adjust to the new ruling clan.

But it is pretty clear that the Republican’s strategy over the last 8 years of letting Bush take the heat on tough ideological issues by trying to tackle them with executive action rather than legislation is a complete flop.   Much of the Republican Congress probably agreed with Bush’s environmental regulation philosophies, but were content to let Bush try to implement them through regulatory policy (or non-policy) rather than legislation.   Now, though, much of Bush’s position has been thrown out in court, and the remainder will likely be changed by Obama.

Seriously, looking back on it, did the Republican Congress between the ‘01 tax cuts and prescription drug disaster and when they were tossed in ‘06 leave any kind of legislative footprint behind?  Jeez, Republicans are whining now about all kinds of stuff, but what were they doing for 6 years?  Offshore drilling is a classic example.  They whined about the Democrats blocking more drilling last year, but what did they do about it the previous years when they controlled Congress and the White House?  I honestly think they were waiting for Bush to do something by executive order and take away any political responsibility off their shoulders.

Radley Balko is justifiably happy that Obama is chucking the the theory that the President can detain people indefinitely at his whim:

President Obama yesterday eliminated the most controversial tools employed by his predecessor against terrorism suspects. With the stroke of his pen, he effectively declared an end to the “war on terror,” as President George W. Bush had defined it, signaling to the world that the reach of the U.S. government in battling its enemies will not be limitless.While Obama says he has no plans to diminish counterterrorism operations abroad, the notion that a president can circumvent long-standing U.S. laws simply by declaring war was halted by executive order in the Oval Office.

Key components of the secret structure developed under Bush are being swept away: The military’s Guantanamo Bay, Cuba, facility, where the rights of habeas corpus and due process had been denied detainees, will close, and the CIA is now prohibited from maintaining its own overseas prisons. And in a broad swipe at the Bush administration’s lawyers, Obama nullified every legal order and opinion on interrogations issued by any lawyer in the executive branch after Sept. 11, 2001.

It’s worth emphasizing again here these steps Obama’s taking effectively limit his own power. That’s extraordinary.

But here is my cynical side coming out:  It is easy to limit your own power in areas in which you have no desire to exercise it.  Obama is doing great work here that needs to be done, but he is also not really giving up anything he cares to have.  I could just as easily have written a story that said that Bush took brave steps to limit the power of the executive branch over CO2 emissions.

When Bush wanted to listen to phone conversations or to hold people incommunicado for years, he could have gone to Congress to seek such authority, or used the authority he already had but which was (rightly) limited by oversight from the judiciary.  But terrorism was “too important” to bother with that stuff, so he did it by executive fiat.

So the real test, in my mind, is to see Obama’s attitude towards executive power in an area where he really wants to get something done, and might not have the patience to wait for Congress.   Obama is a different kind of guy, right?  He would never expand executive power and short-circuit Congress just because he was in the hurry for something, would he?

President Barack Obama signed an executive order to force the auto industry to produce more fuel-efficient cars, an act he says will begin a new era of global leadership for the U.S.

I thought this was particularly clever rhetoric for continuing to gut the 10th Ammendment.

“The days of Washington dragging its heals are over,” he declared, saying it should be easier for states to adopt tough fuel-efficiency rules. “My administration will not deny facts; we will be guided by them. We cannot afford to pass the buck or pass the burden onto the states.”

We are not grabbing power here in Washington, we are just relieving them of the burden of governing themselves.

Update: By the way, I do believe the current version of the CAFE legislation gives the NHTSA and the EPA the ability to change the standard, so technically the administration has this power.  However, typically changes to regulations must go through a public disclosure, comment, and review process, with a number of key requirements like economic impact studies.  The reasons for these requirements is to try to offset (imprefectly) the enormous power Congress is delegating to the Administration in these regulations.

Per Wikipedia (yeah, take it with a grain of salt) the CAFE legislation says:

Congress specifies that CAFE standards must be set at the “maximum feasible level” given consideration for

1. technological feasibility;
2. economic practicality;
3. effect of other standards on fuel economy; and
4. need of the nation to conserve energy.

Obama, impatient with following the process (where have we seen that before?) cuts through it with an executive order.   No one has gone through this process of making these tradeoffs — Obama and a few advisors picked a number and ordered it into being.  By doing so, he is in effect violating the spirit if not the actual text of the legislation in which the power to set CAFE standards was delegated to the agencies under him.

Well, I was cynical about Obama giving up executive power, as politicians generally have a different view of runaway government power once that power is in their hands.  But some good stuff has come out already:

• Obama rescinded Bush’s 2001 executive order allowing former presidents, vice presidents, and their heirs to claim executive privilege in determining which of their records get released to the public. Even better, he’s requiring the signature of both his White House counsel and the attorney general before he can classify a document under executive privilege.
• Issued a memorandum to all executive agencies asking them to come up with a new plan for open government and complying with FOIA requests. He is also instructing three top officials, including the U.S. attorney general, to come up with a new policy on open government. The new policy would replace the existing policy, infamously set by a 2001 memo from John Ashcroft that instructed federal agencies to essentially to take every measure they can to refuse FOIA requests.
• Put a freeze on the salaries of top White House aides.
• Suspended the military trials at Gitmo, and is expected to issue an order closing Gitmo as soon as today.

That’s a really good start.  I am now more optimistic that we might actually get some rollbacks of government power vis a vis FISA and the Patriot Act.  The Fourth Amendment took a serious beating since 9/11, and hopefully it is not too late to roll back the precedents set over the last 7 years.

Of course, all of these activities are reductions of executive power in areas in policy areas Obama wants to undo actions by GWB.  The real test will be to see his approach to executive power in areas where he wants to go past GWB.  A good example is carbon dioxide regulation, where it has been suggested Obama should take the issue out of Congress’s hands and establish a regulatory regime by executive fiat.

While we are on wish lists, I have often told my Republican friends that a fault of Bush’s that did not get enough press was his apparent lack of willingness to provide adult supervision to Congress.  Congress needs to be shamed occasionally to stay on task and not drift off into feeding fests at the trough, and only the President can really do this.  Bush did not have the desire to face down a Republican Congress, and probably had lost all his credibility by the time he faced a Democratic Congress.  Harry Reid and Nancy Pelosi will take a lot of baby-sitting to avoid veering off into their worst behaviors, and it will be interesting to see if Obama will do so.  I think it is in his interest to do so.  Already, the ridiculous stimulus bill Pelosi has crafted threatens to embarrass him.  If I were Obama, I would be furious.  He expends his early political capital for a stimulus bill, and gets a total porked-up lobbyist’s-fantasy from the House.