Executive Power

A Guide to the Coming Onslaught of Presidential Administration

By Jack Goldsmith
Sunday, January 26, 2014, 6:26 AM

Scott Wilson has a long piece in the Washington Post about how “the White House is reorganizing itself to support a more executive-focused presidency” after concluding that it cannot get much done with Congress and should not let the President be defined by his lack of success in the first branch of government.  As a result, “Washington veterans” – most notably, former Clinton advisor John Podesta – “have been brought into the West Wing to emphasize an executive style of governing that aims to sidestep Congress more often.”  There is nothing surprising about this “swerve . . . to the executive powers,” as a senior Obama administration official put it to Wilson.  Indeed President Obama (like all presidents who face a Congress that does not share their views) has been deploying executive power tools aggressively for a while now (especially through decisions – in contexts ranging from immigration to health care – to under-enforce or not enforce federal law).

The coming regime of presidential administration will include more aggressive uses of Executive directives and Executive Orders to achieve he President’s goals.  Perhaps no recent presidency has been so successful in deploying the tools of the presidency in this way as the Clinton administration.  A great guide to what the Clinton administration accomplished through presidential administration, and to the legal machinery that made it possible, is Elena Kagan’s article on the topic.  Kagan describes presidential administration in general terms as follows:

Faced for most of his time in office with a hostile Congress but eager to show progress on domestic issues, Clinton and his White House staff turned to the bureaucracy to achieve, to the extent it could, the full panoply of his domestic policy goals. Whether the subject was health care, welfare reform, tobacco, or guns, a self-conscious and central object of the White House was to devise, direct, and/or finally announce administrative actions - regulations, guidance, enforcement strategies, and reports - to showcase and advance presidential policies. In executing this strategy, the White House in large measure set the administrative agenda for key agencies, heavily influencing what they would (or would not) spend time on and what they would (or would not) generate as regulatory product.

The aggressive use of this form of government during the Clinton administration’s last year became known as “Project Podesta,” and Podesta's experience and success with these tools is clearly why President Obama brought him into the White House late last year.