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Hillary Clinton's sweeping executive power agenda is unprecedented

 Center for American Progress co-founder John Podesta, president Neera Tanden, and former Secretary of State Hillary Clinton.
Center for American Progress co-founder John Podesta, president Neera Tanden, and former Secretary of State Hillary Clinton.
Chip Somodevilla/Getty Images

Hillary Clinton knows what Democrats want from their next president: someone who uses the bulked-up power of the presidency to drive a progressive agenda.

From closing the gun show loophole to tightening the "Volcker Rule" to cut down on risky speculative investing, Clinton is crafting plans to go it alone in major policy areas. That's important because in an era in which Congress can't function — particularly when power is closely divided between the parties — the executive actions a president takes unilaterally are among the most consequential policies enacted.

Sure, there are some Democrats who chew their nails when thinking about Clinton's Machiavellian side, but most are nonetheless glad to see signs that she's not going to get rolled by a Republican Congress. The scope of what she's promising to do by herself is unprecedented from a top candidate for the presidency.

The view from inside the campaign, said one official, is that it's important to be specific about how Clinton would use the unilateral powers of the presidency "because of the level of frustration" Democrats have felt when Obama's priorities have been blocked by Republicans in Congress. Even if Democrats are able to elect one of their own as president in 2016, he or she is all but assured of facing a Congress in which one or two of the chambers are controlled by Republicans.

That's why Clinton is focusing so much time and energy on laying out both where she would try to work with Congress and how she would go around lawmakers when necessary. And it's why Democratic insiders and liberal constituencies are so eager to hear about candidates' plans for using executive power.

Former Health and Human Services Secretary Kathleen Sebelius, who was one of the Obama officials pushed to find areas where the president could flex his executive muscles, said Clinton has to say how she would use the power of the presidency in order to show that she could actually get things done in office.

"A series of proposals that are aimed at Congress seem a little hollow when you’re talking about the current situation," she said in an interview. "She kind of outlines a dual track, which I think in today’s climate is certainly something that illustrates it's more than just a position paper that would sit on someone’s shelf in an office but that it could actually happen."

Not just defending, but expanding, the Obama legacy

For Democrats, the continuing use of executive power to implement a left-of-center agenda is the logical extension of the legacy Obama's built.

Obama went around Congress to regulate toxins, shield millions of unauthorized immigrants from deportation, and negotiate a nuclear arms nonproliferation agreement with Iran. Even the major laws passed by a Democratic Congress during his first term were written with an eye toward using the power of the administration to fashion the details with new rules, from Obamacare's "essential health benefits" standards to Wall Street regulations crafted by the Securities and Exchange Commission and the Commodities Future Trading Commission.

Center for American Progress chief Neera Tanden, who worked on Clinton's 2008 campaign and in the Obama White House, said Obama accomplished a lot of what the progressive think tank world laid out in terms of the use of executive power, and that the taste of those victories whetted Democrats' appetite.

"I think Democrats are definitely in a more feisty mood than they’ve been in the past, so they're willing to take on more fights with the Republicans," Tanden said. "I don’t think they’re concerned that doing an executive action offends the other side."

The broader context is a decades-long transfer of power from Congress to the president that has left the White House with virtually unchecked authority to deploy the military, negotiate treaties, and determine the general direction of the federal budget. Obama, who criticized President George W. Bush's use of signing statements, went on to use a full panoply of executive powers — including memoranda, orders, and actions — to enact the policies he wanted. And that didn't always sit well with liberals: His justification for killing Americans suspected of terrorism abroad and military action in Libya were among the uses of power that made them uneasy.

The political class will argue about whose use of executive power has been most audacious, but what's clear is that the precedent has been set for the next president. And that president, whether it's Clinton or someone else, will inherit an Oval Office that has accrued awesome powers at the expense of Congress.

Vox's Matt Yglesias argues that Democrats should be very happy about the prospects for keeping the progressive pedal to the Washington metal if Clinton wins.

"Committed Democrats and liberal-leaning interest groups are facing a reality in which any policy gains they achieve are going to come through the profligate use of executive authority, and Clinton is almost uniquely suited to deliver the goods," he writes. "More than almost anyone else around, she knows where the levers of power lie, and she is comfortable pulling them, procedural niceties be damned."

Obama and Clinton get similar advice on the use of executive power

When Obama was reelected in 2012, he put out the directive to his lieutenants to scour the powers of the administration and find areas where policy could be made without Congress. The document underlying the push was a 2010 Center for American Progress white paper titled "The Power of the President: Recommendation to Advance Progressive Change."

In the foreword, CAP's then-president and CEO, John Podesta, wrote that the political class was wrongly focused on how Obama could work with the newly Republican House to legislate. Instead, he reminded, there were plenty of historical examples of presidents using executive powers to advance an agenda.

"The upshot: Congressional gridlock does not mean the federal government stands still," Podesta wrote. "This administration has a similar opportunity to use available executive authorities while also working with Congress where possible."

Podesta would go on to advise President Obama on the use of executive power and then become Clinton's campaign chair. Tanden, his successor at CAP, had worked in the Obama White House after a stint running the policy arm of Clinton's 2008 presidential campaign. Together, they represent a major nexus between Obama and Clinton, and they both have poured plenty of thought into how to implement policy with Congress and without it.

Tanden said Clinton's emphasis on detailing executive actions is new because her 2008 campaign staff had assumed there would be Democratic majorities in the House and Senate in 2009. They needed to think more about legislation than about exercising the power of the Oval Office. But after Obama's experience, it's clear to Democrats from the ground level to Clinton's Brooklyn campaign headquarters that they won't get what they want if they rely on a Republican Congress to work with a Democratic president.

"Unless congressional dynamics change, and we can get action on issues in which significant majorities of Americans agree — like gun safety measures, campaign finance reform, and immigration reform — I think Democrats would welcome executive actions by the next president," Rep. John Yarmuth, a Kentucky Democrat, told Vox. "Most Democrats would prefer that the majority party would simply allow votes on those issues, but if that isn't going to happen, executive action would be acceptable to most of us."

There's no evidence of a political risk in using executive power

One of the most instructive features of that Obama experience is that for all the gnashing of teeth — by furious Republicans and timid Democrats — there's no evidence that using executive powers hurt him. In fact, there's a very compelling argument to be made that he advanced a slew of progressive causes without inflicting any damage on himself at all.

Obama's approval rating has risen from 40 percent at the time of the 2014 midterm election to 48 percent in the most recent Gallup weekly survey.

That doesn't mean Clinton's vows to use the power of the presidency to make policy are without any political consideration at all. For the White House, there's a duality to her design of executive actions: It affirms Obama's use of power, but it also points out what he hasn't done that he could do.

For example, Clinton praised Obama's executive actions on immigration, but said in an interview with Telemundo that he had been too quick to deport people earlier in his administration.

"I also think because the deportation laws were interpreted and enforced, you know, very aggressively during the last six and a half years — which I think his administration did in part to try to get Republicans to support comprehensive immigration reform," Clinton said. "It was part of a strategy. I think that strategy is no longer workable. So therefore I think we have to go back to being a much less harsh and aggressive enforcer."

A White House official did not reply to an email request for comment on the West Wing's view of Clinton's proposed executive actions.

Where can the next president use executive power?

Obama hit most of the items on CAP's checklist, but that doesn't mean there aren't countless opportunities for the next president to use his or her powers to refashion domestic and foreign policy without a vote in Congress.

Clinton has latched on to some of them. She says she'll appoint Supreme Court justices who would overturn the Citizens United decision that ushered in a new era of soft money in politics and force government contractors to disclose political donations. She says she'll make sure her Homeland Security secretary is more lenient about deportations, and that she will close the "gun show loophole" by requiring private gun sellers to register as licensed dealers. The rest of her policy on guns, which follows on 23 executive actions taken by Obama in the wake of the Sandy Hook Elementary School massacre in December 2012, matches up well with proposals from gun control advocacy groups such as Everytown for Gun Safety. She's got her party behind her on that and the mechanics of using a voter mandate to implement the rest of her agenda.

"If our new president is greeted with a relentless and determined Republican Congress committed to insuring he or she is a one-term president, as Sen. McConnell described his job toward Obama, then that president should use the legal authority available to the executive to accomplish his or her goals for the American people," said Rep. Peter Welch, a Vermont Democrat.

The possibilities are endless, and Clinton understands how power works in Washington as well as anyone who has held the presidency. After all, she's played the DC power game at almost every level: as an advocate at a nonprofit, a staffer investigating Watergate, the chair of a small federal agency, the first lady, a senator, and secretary of state. The combination of Clinton's knowledge of Washington with the awesome authority now vested in the Oval Office presages a tremendously powerful presidency. For Democrats, Matt Yglesias wrote, that's reason to rejoice about her willingness to fire up the executive power booster rocket. For everyone, it's the reason to pay close attention to what Clinton says she will do with that power.