A recent New York Times article on the Obama Administration's response to Republican congressional obstructionism makes extensive use of the terms "unilateral and "unilateralism." The article suggests hypocrisy on the part of President Obama, stating that "[a]s a senator and presidential candidate, [Obama] had criticized George W. Bush for flouting the role of Congress." But it offers only a single example of an action based on the president's constitutional authority to act without congressional authorization, the use of the recess appointment power.
Instead, the article cites numerous instances of a very different phenomenon: Presidential action based on powers delegated by Congress. Time and again, the administration has asked Congress for legislation to address pressing problems, been faced with obstruction, and fallen back on authority it believes was already granted by previous legislation. This approach is different in kind from the Bush administration's repeated assertion of a right to ignore or act contrary to statutes, including assertions made in the former Bush administration official John Yoo's infamous "torture memos."
The article summarizes the administration's approach as follows:
But increasingly in recent months, the administration has been seeking ways to act without Congress. Branding its unilateral efforts "We Can't Wait," a slogan that aides said Mr. Obama coined at that strategy meeting, the White House has rolled out dozens of new policies -- on creating jobs for veterans, preventing drug shortages, raising fuel economy standards, curbing domestic violence and more.
Each time, Mr. Obama has emphasized the fact that he is bypassing lawmakers. When he announced a cut in refinancing fees for federally insured mortgages last month, for example, he said: "If Congress refuses to act, I've said that I'll continue to do everything in my power to act without them."
The article acknowledges that the Obama administration has not claimed presidential power to override statutes, as the Bush administration did:
"Obama's not saying he has the right to defy a Congressional statute," said Richard H. Pildes, a New York University law professor. "But if the legislative path is blocked and he otherwise has the legal authority to issue an executive order on an issue, they are clearly much more willing to do that now than two years ago."
Thus, according to Pildes, the administration has not altered its view of presidential power, but merely shifted political tactics from emphasizing bipartisan cooperation to placing a premium on taking action.
Georgetown University law professor and former Obama administration Office of Legal Counsel official Marty Lederman argues that the article's central failing is that it does not make clear the extent to which the administration is acting under authority it argues it has under existing legislation.
From Lederman's blog post:
[A]lthough the focus of the story purports to be about the use of "unilateral" executive power, the article itself includes only one example of the exercise of unilateral, constitutional authority by the current President--namely, his three recess appointments on January 4th....
The cases Savage cites are instead overwhelmingly instances in which the Executive has acted pursuant to what it views as delegated statutory authority. (Among the actions cited are: a cut in refinancing fees for federally insured mortgages; "increased efforts to curb greenhouse gas emissions through environmental regulations"; "giving states waivers from federal mandates if they agree to education overhauls"; "refocusing deportation policy in a way that in effect granted relief to some illegal immigrants brought to the country as children"; and "moving up of plans to ease terms on student loans.")
And who, exactly, has delegated all of this authority to the Executive? Congress, of course.
As Lederman points out, a turn toward sharper edged political rhetoric by the president or his aides does not change that the Administration is acting based on its view of what the laws passed by Congress already permit:
The President has urged Congress to enact new, expanded authorities to better or more comprehensively address a serious problem; but when a recalcitrant legislature refuses to do so, the President falls back to the next best thing--namely, exercising the more circumscribed authorities Congress has already conferred upon him. The White House officials quoted in the story rightly commend the President for not spending his term waiting for a bipartisan moment that just won't come. But what he has done, while Congress fiddles, is simply to use the imperfect authorities conferred upon him by earlier, less stubborn legislatures.
Of course, there have been legal challenges to certain administration actions which question whether they were actually within the scope of the claimed authorizing legislation, as is common for significant regulatory actions. But, as Lederman points out, "in the event the courts hold that an agency lacks the statutory authority it has asserted, there is no indication the Obama administration intends to assert constitutional powers to do something that Congress has not authorized (let alone anything Congress has prohibited)."