EL PRESIDENTE?

Recently, we have been “warned.” President Obama has told us: “I've got a pen and I've got a phone.” That is, if Congress, because of its inability to act, can't address the pressing issues before us, then he will act through executive orders. The cry from the opposition party is that the President is acting in dictatorial fashion and his actions will be illegitimate and unconstitutional. Is this right? Whether it is or not is a matter of reviewing each of his actions and analyzing it – not my purpose here. My purpose is to add some context to this whole question and establish some ground rules as to the notion of an imperial presidency.

My first introduction to this term, at least as it was being applied to contemporary conditions, was its use in describing the presidency of Richard Nixon. Symbolically, the concern was illustrated when he ordered the uniforms of the White House guards changed to resemble, to some, nineteenth century imperial uniforms and, to others, marching band uniforms. The get-ups were described as “palace guard” uniforms. Apparently, Nixon was inspired by uniforms he saw in Europe. But the move fed the general impression, mostly fostered by his opposition, that this sartorial move simply reflected the President's desire to institute an imperial presidency. The newer uniforms didn't last very long. As for my awareness, I probably already had been introduced to the concept of a strong presidency in my political science classes.

In the political science literature, there was – probably still is – a strong bit of reporting and explaining about the difference between what is called the “strong presidency” theory and the “weak presidency” theory. Weak presidency refers to the view that holds that our Constitution created the presidency to be of very limited powers. In effect, the powers of the office solely derive from his/her duty to carry out the wishes of Congress. The president, under this theory, simply awaits what Congress wishes, in the forms of the laws it passes, and merely carries out those wishes in a fashion that is as true to the intentions of lawmakers as possible. The use of the veto by the executive – the ability of the executive to say no to a particular bill – should be reserved for only the most extreme cases in which the Congress has passed an obviously unconstitutional bill or in which the bill would cause untold damage to the nation or to the security of the nation, especially in terms of foreign relations. This view of the presidency was very much in line with traditional federalist thinking and, as I have pointed out, in vogue long into the history of the republic. If that be the case, then one would expect the use of the veto to have been very limited during the years in which the traditional federalist view was dominant. From the presidency of Washington through that of Chester Arthur (1789-1885), there were 206 vetoes – including regular vetoes and pocket vetoes. Ninety-three of them were issued by only one president, Ulysses S. Grant. I cut it off after Arthur because the next president, Grover Cleveland, issued 584 vetoes. One needs to remember that Cleveland is the only president to have served two non-consecutive terms – he won one election, lost one, and then won one. In his first term, he issued 414. What is interesting about this turn, from Arthur to Cleveland, is that since then we have had a significantly higher frequency of vetoes by the executive branch. The all time record holder is Franklin D. Roosevelt with a total of 635. Then again, FDR served quite a bit longer than any other president, but ironically was graced with a Congress controlled by his own party. In any case, I believe the numbers support the general notion that early in our national history, our bias toward the presidency was to see the office as subordinate to Congress. Slowly, but unrelentingly, our acceptance and then our expectations for an active president grew and with that we had a change of heart. Consequently, the institution of the presidency has become the dominant branch. This shift began, ever so modestly, with the dramatic administration of Andrew Jackson (he issued 12 vetoes; significantly more than all six previous presidencies which totaled 9 vetoes). In contemporary times, since the Truman administration, the average number of vetoes per presidency is 66 1/4 vetoes. The highest numbers were recorded during the Truman (250 in eight years), Eisenhower (181 in eight years), and Reagan (78 in eight years) administrations. Of note, the Ford administration issued 66 in roughly two years and five months. In our current Obama administration, there have been, in five years, TWO. Perhaps the current president wants to reintroduce the weak presidency theory?

Of course, opposing the weak presidency theory is the strong presidency theory. Here, the idea is for the president to challenge Congress in order to implement the president's agenda and where Congress does not act, to take the initiative and act. The first annunciation of this theory was given to us by Andrew Jackson. He not only challenged Congress; he also challenged the Supreme Court by refusing to refrain from a policy the Court had ruled unconstitutional¹ – a challenging strategy against the Court not followed by any succeeding president with the exception of FDR with his “court packing” scheme. In terms of relations with Congress, the question is: what are the initiating powers of the president to develop and carry out policy not authorized by Congress? For example, Theodore Roosevelt wanted to spend monies already allocated to send a fleet of our navy ships, the White Fleet, around the world – a showing-off gesture to promote our military prowess. Some said Congress had not authorized the expenditure. TR simply responded to the critique: “try and get it back,” referring to the money. Instead of a subservient role, the strong presidency theory calls for a cooperative relation between Congress and the president in determining what national policy will be. Sometimes, that cooperation reflects a coordination, and sometimes it is better characterized as a competition for power and influence. It is this sense of competition, many argue, that is more closely in line with the intention of the Constitution. It reflects the Madisonian ideal of having the branches of government compete so that excessive power would not fall on any one of them – “absolute power corrupts absolutely.”

As for the charge of whether the Obama administration is trying to reintroduce a weak presidency, not so, say his critics. I was watching a C-SPAN broadcast the other day of a Congressional hearing in which constitutional scholars were invited to testify as to whether the Obama administration was usurping too much power. With only two vetoes, the focus was not on stopping legislation, but on the President and his administration's execution of the laws. The charge is that through the actions of the President and his interpretations of the law, he is not executing the law as written. By behaving in this way, the President does not have the legitimate power to do what he is doing. An often cited example is his administering the Affordable Care Act in which he has delayed the implementation of certain mandates written into the law. I will not pretend to know enough about the law to determine whether he is guilty of using unsupportable power to delay those mandates, but there are certain guidelines by which to determine if that is the case.

Fortunately or unfortunately, laws at any level – national, state, or local – usually cannot be written with such specificity so as to spell out exactly how the law will be administered in its execution. Also, laws don't always come to the executive fully funded. That is, for every law that authorizes something to be done, such as the ACA, there needs to be an accompanying, but separate, law that appropriates the funds from the Treasury to pay for it. Often, that amount is not equal to the task. Hence, this usually gives the administration power in determining what parts of the laws to implement. This is the case unless the law specifically identifies a priority in spending choices. When the President states that he has a phone and a pen to carry out executive orders, in order to be legal, the authority to do so comes from the lack of specificity in the law or from a lack of funding provisions. Oh yes; there are times when the law specifically calls on the executive to determine the actual method by which the law goes into effect.

Take the issue of whether the administration will enforce anti-marijuana laws in Colorado where the recreational use of it has become legal under state law, but not federal law. The Obama administration has announced that it will not enforce those federal laws; that is, it will not spend its limited funds on policing statewide law breaking. Now, unlike a law, such executive decisions are easily reversed by subsequent administrations by the equally simple use of a pen and phone by a new president. Any executive action, which is a product of a law's lack of specificity or lack of funding, is in force only during the life of that administration, assuming the President doesn't change his/her mind and get rid of the order him/herself. The moment a newer administration decides to rescind it, it is no longer in effect.

Therefore, as a tool in implementing an “imperial” presidency or a “dictatorship,” executive action is a relatively weak one. The veto is much more effective and this president has been quite weak in its use.

Note: My use of the term, el presidente, is not meant as a slur of the Latino/a culture – heck; I'm a Latino. I just think it sounds more imperial, doesn't it?

1This had to do with the removal of the Cherokee – native American tribe – from the East to territories out West.