During the morning before the 2014 State of the Union address, White House Counselor John Podesta fired up the Democrat faithful with visions of a passionate President Obama about to declare rule by executive orders to vanquish his obstructionist Republican adversaries. However, instead of a triumphant warrior fervently wielding his pen as a sword and his phone as a shield, the person who gave the address was actually fairly sedate.
Indeed, the President seemed to politely sleepwalk through his prepared speech to the joint session of Congress. With his poll numbers at the same level as President George W. Bush’s numbers when Republicans were annihilated in the 2006 mid-term elections, Barack Obama seemed incapable of defiantly rallying his troops for a do-or-die Constitutional struggle with Congress.
Whether they support the President’s policies or not, the American people expect their national leader to be resolute.
President Obama mentioned six times that if Congress does not enact his agenda, he is willing to exercise the executive power of the presidency to accomplish his goals. The Obama administration must have monitored the ferocious blowback throughout the day as media talking heads howled at the audacity of the President to threaten to make or change law on his own. As his speech droned on for over an hour, it became clear Obama lacks the fire in the belly necessary to go rogue and trample the Constitution.
During his 2008 presidential campaign, candidate Barack Obama extolled the virtues of governing as a pragmatic problem solver. He attacked President Bush for circumventing Congress with executive orders, and he advised House Democrats that one of his first actions as president would be ordering his attorney general to scour White House executive orders and expunge any that “trample on liberty.” Obama told reporters he was willing to work with both political parties: “I am looking forward to collaborating with everyone here to win the election, but more importantly to collaborate with everybody here and also some like-minded Republicans to actually govern and to deliver on behalf of the American people.”
As a Harvard University-trained attorney, Barack Obama knows that executive authority is derived from the “Take Care Clause,” Article II, Section 3, of the United States Constitution: “[The President] shall take Care that the Laws be faithfully executed…”
The section is also referred to as the “Faithful Execution Clause” because it reads as a duty that qualifies the president’s executive power. By virtue of executive power of his/her office, the president may execute the lawful and control the lawful execution of others. However, the president must exercise his law-execution power to “take Care that the Laws be faithfully executed.”
The ratifying debates at the Constitutional Convention repeatedly evidenced the notion that the president had a duty to execute the laws faithfully. George Washington read the clause as imposing on him a unique duty to ensure the execution of a federal law he personally opposed. In putting down the Whiskey Tax Rebellion, President Washington observed, “It is my duty to see the Laws executed: to permit them to be trampled upon with impunity would be repugnant to that duty.”
But “faithful-execution duty” is not precise, and the conservative Heritage Foundation acknowledges presidents are not required to enforce every law to its fullest extent:
Common sense suggested that the President may enjoy some discretion in order to gauge the costs and benefits of investigation, apprehension, and prosecution. Moreover, the pardon power (see Article II, Section 2, Clause 1) supplies a constitutional reason for concluding that the President need not enforce the law every time he feels there is a violation, for, notwithstanding his faithful-execution duty, the President may pardon an offense even before a trial or conviction. It is also possible that the clause does nothing more than incorporate the English Bill of Rights provisions that forbade the Crown from dispensing or suspending the law. Under this reading of the clause, the President can neither authorize violations of the law (he cannot issue dispensations) nor can he nullify a law (he cannot suspend its operation). He has, nonetheless, very wide discretion in enforcing the criminal law.
The “Take Care Clause” should not be read to limit the president to the role of “an aloof overseer of law execution.” There is no historical evidence supporting the notion that Congress can use the faithful-execution duty as a means to strip away any presidential prerogative, let alone the essential task of executing the laws.
However, the Supreme Court did limit executive authority in Youngstown Sheet & Tube Co. v. Sawyer (1952) by stating the president may not take an action not authorized either by the Constitution or lawful statute. The president must not use extra-constitutional veto or suspension power to refuse to enforce a law or “cancel” certain appropriations.
Despite his bipartisanship campaign pledges, one of Obama’s first actions as President of the United States was to use his executive authority to grant states waivers so they could avoid tough penalties for not meeting goals required by the No Child Left Behind law. The President substituted requirements for those specifically written into the 2002 law by Congress. The move prompted furious protests from lawmakers wanting to protect their turf, conservatives worried about federal overreach, and liberals concerned it would let states off the hook from helping disadvantaged kids.
The history of American politics is a tug of war between the president and the other branches of government. Presidents routinely seek to push the boundaries of their executive authority, while the other two branches try to rein it in. The last twenty presidents issued an average of 44 executive orders per year. Democrat Harry Truman had the highest at 113 per year, and Republican Warren Harding had the lowest at 2 per year. Democrats have averaged 59 per year, and Republicans have averaged 34. George W. Bush and Barack Obama both averaged 41 executive orders per year in office.
President Obama’s handlers set high expectations; the President would declare a “Year of Action” to omnipotently rule with executive orders. Yet it was a subdued Barack Obama who showed up at this year’s State of the Union address.