“Our power,” President Barack Obama told the Democratic National Convention on Wednesday night, “doesn’t come from some self-declared savior promising that he alone can restore order. We don’t look to be ruled.”
We don’t look to be ruled. It was a gorgeous line of rhetoric, a volley of monosyllables landing like darts. Intentionally or not, it echoed another classic Obama line — one that he used a lot early in his second term, then abandoned: “I’m not a king.”
It’s the line Obama used to use when he was being pressured by immigrant-rights activists to take more executive action, and at first he resisted — because he was “not a king,” he couldn’t “simply ignore the law.”
Obama’s would-be successor, Hillary Clinton, has moved beyond uneasiness about executive action. The Clinton America has heard about all week at the Democratic National Convention is single-minded in the pursuit of her goals — and doesn’t appear to be as invested in whether the work gets done legislatively, through bipartisan negotiation, or through the executive branch.
A lot of people are freaking out — justifiably — over Donald Trump’s eagerness to weaken or abandon democratic norms. But if Clinton is elected, she won’t just represent the absence of Trumpian disruption, nor a continuation of Obama’s rule. A Clinton administration, at least as we’ve seen it this week, would cement the expansive power of the 21st-century presidency — simply by accepting it as a legitimate alternative to bipartisanship.
Outreach to Republicans uneasy with Trump is a way for Obama to redeem postpartisanship
Wednesday night was the most thematically coherent night of either convention so far in 2016: It was an outreach program to the “reasonable” Republicans who are deeply uneasy with their nominee.
Vice-presidential nominee Tim Kaine characterized his father-in-law as one of those Republicans. “Any party that would nominate Donald Trump for president has moved too far away from his party of Lincoln,” Kaine said. “And if any of you are looking for that party of Lincoln, we've got a home for you right here in the Democratic Party.”
But it was Barack Obama who really drove home the pitch to reasonable Republicans, and that made perfect sense. Obama has always believed deeply in the idea of the “noble opposition.” Obama’s belief that both sides have good ideas, and the best interests of the country at heart, is what attracts him to the dream of postpartisan synthesis: knitting together the best of red and blue America, forever.
The last eight years have made it patently obvious that the president is wrong. Partisanship has trumped statesmanship time and time again, as the US endured a few weeks of government shutdown and multiple near-misses with defaulting on its debts. For the last five months of the last Supreme Court term, the Supreme Court’s limped along with eight members, deadlocking on some of the term’s most important cases.
It’s a historical irony that a president so committed to post-partisanship has presided over such a partisan era. It’s a tragic irony that Obama, even into the last year of his presidency, has refused to abandon his optimism. Up to the nomination of the previously uncontroversial Merrick Garland to the Supreme Court, Obama’s acted, over and over, in the hope that just this once statesmanship will win out. He’s Charlie Brown with the football of democracy.
Democrats don’t praise bipartisanship — and they aren’t asking for supermajorities, either
Belief in the noble opposition is one thing. Belief in bipartisan compromise is another. And at the Democratic National Convention, not even Barack Obama was willing to praise or promise bipartisanship.
“Working with the other side” is just not a promise people have made about Hillary Clinton this week. Kaine said that some of his Republican colleagues in the Senate still talk about “what a fantastic senator that Sen. Clinton was” — but only “when they think no one’s listening.” He wasn’t trying to make a point about how they’d work with her if she were elected, he was saying the objective competence of her performance holds up even if the opposing party is unwilling to admit it.
This is a reflection of reality. If Hillary Clinton took the podium Thursday and promised to do nothing without the support of Republicans in Congress, it would seem somewhere between naive and insane. In 2016, it very much seems that the only ways to get things done in Washington are through legislative supermajorities that can push through one party’s key priorities (like the Affordable Care Act and Dodd-Frank financial regulation in 2010), or executive action that bypasses Congress entirely, like the immigration actions and others that Obama’s taken in the last two years of his presidency.
The Democrats’ convention hasn’t exactly made the case that their party should be entrusted with 60 or more seats in the US Senate. In fact, it’s not entirely clear what congressional Democrats would do with control if they got it.
That leaves executive action. And the Democratic pitch to voters is that Hillary Clinton (in addition to being a sane and reasonable person, as Donald Trump, they imply, is not) is a relentless fighter for America and its people — that she will find some way to accomplish her goals, and won’t rest until she does.
Clinton recently told Vox’s Ezra Klein that she sees politics (paraphrasing Max Weber) as “the slow, hard boring of hard boards.” Other Democrats have used different phrasing this week. But if you’ve been watching this week’s convention, the idea’s been drilled into your skull. It makes perfect sense that Clinton would use all the tools in her toolbox, and executive authority provides several of those tools.
Clinton has accepted expansive executive action in a way that Bush and Obama were not
Both of the presidencies we’ve seen so far in the 21st century have expanded the use of executive power.
George W. Bush oversaw massive expansion of domestic surveillance and the creation of a federal deportation machine (deportations rose about 400 percent from the beginning of Bush’s presidency to the end), and used the theory of the “unitary executive” to assert that his administration would interpret (and possibly ignore) laws meant to constrain its power.
Barack Obama has cracked down on leaks; taken military action in places like Libya without congressional authorization; and greatly expanded extrajudicial killing via the drone war. Domestically, he’s used prosecutorial discretion to exert more control over which immigrants get detained and deported; made “recess appointments” when Congress wasn’t technically in recess as a way of getting around confirmation delays; and, especially in the last two years of his presidency, found creative ways to get the Department of Labor to go after unpaid internships and equal pay.
Many of these things are manifestly legal. In some cases, they’re absolutely necessary: The executive branch will always need to make decisions about which federal laws are a priority for agencies to enforce, and the fact that there are more and more federal laws to choose from (and therefore more and more options for the use of discretion) is a trend that predates Obama and Bush.
But whether by choice or necessity, those powers are getting exercised more often. And both presidents have taken executive actions whose legality is disputed.
But neither president quite made the case for the expanded executive as an affirmative good.
George W. Bush (or rather, vice president Dick Cheney) may well have come into office with the goal of strengthening the presidency. But their highest-profile uses of executive authority came after the terrorist attacks of September 11, 2001 — and were easily presented as responses to it. Other countries (including France and Turkey) have constitutional provisions for the executive branch to assume emergency powers after a crisis; the US Constitution doesn’t have that, but the post-9/11 political environment gave the Bush administration similar cover.
Obama, for his part, was more acquiescent to use of executive power than he’d seemed as a candidate (when he talked about restoring the rule of law to things like surveillance). But his belief in democratic norms — the same belief undergirding his post-partisan optimism — made him uncomfortable with the use of executive power in domestic policy.
Immigration activists may have, eventually, worn Obama down on the use of executive authority to protect unauthorized immigrants, but his protestations that he wasn’t a “king” seemed to come from a genuine place ideologically: The constitutional law professor protesting, exasperatedly, that his students were seeing something in the Constitution that simply wasn’t there.
On immigration and other issues, when Obama has taken executive action in the last two years of his presidency, he’s presented it as an unfortunate necessity in the wake of congressional inaction: It is always a plan B. Insofar as it follows a breakdown in the legislative process, Obama implies that executive action is a political failure.
But Hillary Clinton sees the two as complements — and appears equally willing to use either, or both at once.
She’s promised that she’ll introduce a comprehensive immigration reform bill in the first 100 days of her presidency, but she’s also promised to continue to defend Obama’s executive actions in court and even go beyond their protections. Her college-affordability plan includes a proposal for legislation that would make public university tuition free for many Americans, but it also includes a suggestion to impose a moratorium on college debt that the president could accomplish executively.
And abroad, it’s hard to imagine that Hillary Clinton, who’s more interventionist than Obama, would be more circumspect in getting congressional approval for military action (although her running mate Kaine disagrees with her about the need for congressional approval in Libya).
On all these fronts, she’s hedging against a paralyzed legislature, indicating she will do what she can even if Congress will do nothing.
At very least, Clinton would, if elected, will likely start her presidency with the same level of comfort that Obama ended his. That will make it more appealing for advocates and interest groups to push for executive action instead of (or in addition to) their legislative agendas.
A Clinton presidency might augur a political realignment. It would definitely represent a consolidation of Bush-Obama changes.
It seems faintly ridiculous, I admit, to talk about how Hillary Clinton would represent a retrenchment of executive power. Because it’s impossible to see anything in the incandescent ego corona that is Donald Trump.
If Clinton accepts the use of broad executive power, Trump clearly relishes it. He often seems blissfully unaware of constitutional or legal constraints on the presidency and the executive branch, but many of his most appalling suggestions could easily be done using existing legal authority.
A Trump Department of Justice could probably find a way to go after Amazon’s Jeff Bezos as long as it wasn’t too obviously a form of payback for the Washington Post’s coverage of Trump; a Trump State Department and Department of Homeland Security could drastically reduce Muslim immigration to the United States as long as Trump didn’t call it a “Muslim ban” (which he has accordingly stopped doing).
Many Democrats and some Republicans are manifestly terrified with the idea that Donald Trump should have this kind of power. But so far, neither have used Donald Trump as a reason why Congress needs to rein in the executive branch. (By the same token, Republicans are terrified of a Clinton presidency, but haven’t used the fact that it’s likely to happen to argue for restraining executive power before it does.) That’s an indication that, politically speaking, the expanded executive has already become pretty accepted; each party is willing to accept the risk of the other side getting the keys to a powerful executive, for a chance at the benefit of driving it themselves.
Compared to a Trump administration, a Clinton administration would simply continue the trend that’s spanned two presidencies. But if she’s elected in January, the way her opponent would, counterfactually, have governed won’t be relevant to the way she governs. And whatever political and policy realignment happens as a result of the 2016 election, it will also represent the end of a chapter: the expanded 21st-century executive will be set in place.