The power of presidents

By Harold H. Bruff

In the superheated partisan rhetoric of our times, President Obama is often portrayed as systematically exceeding his constitutional powers. These claims usually omit any actual comparison to how prior presidents have interpreted their constitutional powers.

When that comparison is made, it turns out that Obama is generally well within the boundaries of traditions that his predecessors have generated. This does not mean that any particular action he has taken will be upheld by the courts - context counts and doubt surrounds many of his actions. But wholesale claims that he has abandoned his general constitutional duty to "take Care that the Laws be faithfully executed" or has transgressed particular limits on his foreign policy powers are unfair.

I offer two examples to support this conclusion, in the hope that sober legal and historical analysis will supplant name-calling and exaggeration.

Last fall, Obama issued an executive order deferring deportation of many undocumented parents of children who are legally in the United States. The order responded to the fact that Congress currently funds deportation of 400,000 undocumented aliens per year, out of the more than 11 million who are here. This situation calls for prosecutorial discretion in choosing whom to deport, which is a kind of discretion that the president's faithful execution duty supports.

Obama gave deferrals to those with the closest family ties to this country. No statute clearly authorized this action, nor did any clearly forbid it. In this "twilight zone" of uncertain authority, ever since Theodore Roosevelt presidents of both parties have aggressively issued executive orders to implement their policies unless and until Congress revises or countermands them with a statute. TR used these orders to conserve natural wonders like the Grand Canyon. Harry Truman issued an order to desegregate the U.S. military. Ronald Reagan required cost-benefit analysis of federal regulations. And so on.

Obama issued his order because he could not simply deport everyone illegally here, and wanted to establish rational deportation priorities. The scale of the program is very large - it applies to up to four million people - but the nature of the action as an exercise of prosecutorial discretion is supported by tradition.

Congress retains the power to override the president's order with a statute resolving immigration issues, as the president has invited them to do. If Congress takes no action, Obama's successor can modify or rescind the order.

A second example is the executive agreement that Obama has been negotiating with Iran and a group of European nations to limit Iran's nuclear capacity. Presidents since George Washington have made agreements with other nations without submitting them to the Senate for ratification as treaties. Sometimes these concern minor matters, but many presidents have used executive agreements for major foreign policy decisions. Congress has sometimes modified or even repudiated particular agreements by statute, but has generally acquiesced in the existence of the overall practice.

Famous examples of these agreements include Franklin Roosevelt's recognition of the Soviet Union during the New Deal and his exchange of aged destroyers for British bases on the eve of World War II. More recently, Richard Nixon recognized Communist China and normalized relations with its government. In 1979, Jimmy Carter ended the Iranian hostage crisis with an executive agreement that Algeria brokered with Iran. Incoming President Reagan ratified the deal and Congress legislated to implement it.

In this latest stage of our vexed relationship with Iran, we are once again negotiating a delicate agreement that will be subject to congressional statutory revision and to possible modification or abandonment by Obama's successor.

Hence, although both executive orders in areas of statutory uncertainty and executive agreements in areas of international delicacy may at first appear to be unilateral exercises of unbridled presidential power, both kinds of action are subject to ultimate congressional control. Presidents contemplating either kind of action find authority for them in the fact that earlier presidents have trodden similar ground, and that Congress, the courts, and the American people have endorsed the legality of their actions.