The Obama Administration’s Forthcoming Increased Reliance on Presidential Power

By Jack Goldsmith
Tuesday, October 19, 2010, 8:28 AM

This Obama administration’s caution about using presidential power unilaterally will likely change after the expected surge in republican congressional numbers following the midterm elections.  Glenn Thrush speculated in POLITICO earlier this month that the administration “may have to be re-stocked with staffers who know how to leverage executive power in the face of a newly emboldened congressional GOP.”  And Scott Wilson recently noted in the Washington Post that “the president could . . . choose to use – or threaten to use – his executive powers to get some of what he wants done without seeking congressional approval.”

The increased reliance on presidential power will likely take several forms.

One will be to ramp up policymaking by the administrative bureaucracy through executive orders and related executive directives.  This is what President Clinton did after the 1994 mid-term elections.  “Clinton came to view the administration as perhaps the single most critical – in part because most available – vehicle to achieve his domestic policy goals” (2281-82), wrote then-professor Elena Kagan in a seminal article that will surely be a road map for the Obama White House.  As Kagan explains, Clinton appropriated bureaucratic tools that Presidents Reagan and Bush I used for de-regulatory purposes, and wielded them to further “a distinctively activist and pro-regulatory governing agenda” (2249).  Expect Obama to do the same on issues ranging from climate change to immigration and health care reform.  Most of these regulatory reforms will be justified on the ground that, as Kagan explains, “Congress generally should be understood to have left authority in the President to direct executive branch officials in the exercise of their delegated discretion” (2246).  I find Kagan’s argument for this conclusion persuasive, but the touch of congressional "intent" in many of her examples is so slight that the President in reality exercises significant policy discretion that is neither authorized nor contemplated by Congress, though it is subject to congressional modification.  In those senses the president is exercising the functional equivalent of inherent Article II power (i.e. power the president can exercise under Article II without statutory authorization but subject to congressional override), even if one does not like putting it in that box.

Also expect the administration to rely more on exclusive Article II power (i.e. power only the president can exercise, without interference from Congress).  Republicans have already promised that if they win the House, they will wield the subpoena power aggressively to seek executive branch documents and the testimony of executive branch officials on all manner of topics.  If this happens, the Executive branch will respond with exclusive power claims of executive privilege and attorney-client privilege, at least as a negotiating tactic.  The administration might also raise Article II objections if Congress bars the President from deciding which alleged terrorists to prosecute in civilian courts, as it has threatened to do since Attorney General Holder announced a year ago that he wants to prosecute KSM in civilian trial.

The more interesting question is whether the Executive branch will rely more on an exclusive commander-in-chief power.  It did not do so in the face of some novel intrusions on executive power in the recent intelligence authorization bill.  And while it has preserved the right to disregard statutes in signing statements, it has done so on the basis of an exclusive power over foreign relations, not an exclusive commander-in-chief power.  The only situation in which I think it can be said that the administration has made an exclusive commander-in-chief power argument is in the political question doctrine section in its al-Aulaqi brief.  But the appropriation riders that Congress has attached to matters like transferring detainees from GTMO, which touch on traditional commander-in-chief powers, will likely grow, perhaps a lot, after the mid-term elections.  As Congress more aggressively micromanages military affairs, the administration will be pushed to consider more seriously exclusive commander-in-chief power arguments.