Oct. 21 (Bloomberg) -- A leading Republican complaint during the partial government shutdown was that President Barack Obama had delayed implementation of the Affordable Care Act for businesses but not individuals. Many party strategists argued that its protest should have been focused on delaying rather than defunding the law.
I am skeptical that this would have turned the political drama to Republican advantage. What is more intriguing to me as a scholar is the charge that Obama, in giving businesses an extra year to prepare, defied the language of the statute and acted beyond the powers of the presidency.
Critics have contended that the president’s unilateral reinterpretation of the statute was an unprecedented abuse of power. Supporters have said it was unremarkable and hardly unprecedented, citing President John Kennedy’s executive orders on civil rights.
In this case, history is on Obama’s side. In point of fact, Kennedy’s executive-order activism was even broader than Obama’s defenders have noted -- much of it without any explicit statutory sanction, and some of it in the teeth of congressional intention.
During the 1960 campaign, Kennedy promised to be more active on civil rights than Dwight Eisenhower had been -- even in the absence of enabling legislation. The president, said the young senator, “must be prepared to exercise the fullest powers of his office -- all that are specified and some that are not.” Among those who agreed was Martin Luther King Jr.: “The power inherent in executive orders has never been exploited; its use in recent years has been microscopic in scope and tepid in conception.”
Kennedy’s most famous executive order, issued just weeks after his inauguration, was Executive Order 10925, which required federal contractors to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.”
As the political scientist Kenneth R. Mayer notes in his book “With the Stroke of a Pen: Executive Orders and Presidential Power,” however, 10925 was the easy one. Broad executive authority over the contracting process at least rested on firm precedent. Elsewhere, Kennedy took time to get moving. Once he started, however, he acted dramatically.
Kennedy’s most creative use of his implied powers to push the cause of civil rights was Executive Order 11063, issued in November 1962. It commanded all federal agencies to take measures to end racial discrimination in housing that was owned or operated by the federal government or built or purchased with federal aid.
Nowadays, such an order would win widespread applause. At the time it was issued, 11063 faced a problem: It entirely lacked a plausible statutory basis.
Kennedy presented the order as an interpretation of the National Housing Act of 1949, signed by Harry Truman. Mayer points out that both Truman and Eisenhower had resisted pressures to issue an order similar to 11063, perhaps because the statute contained no nondiscrimination provision. On the contrary: Congress had considered and rejected such an amendment, both in debating the 1949 act and in subsequent years.
Kennedy rested 11063, rather dubiously, on the language of the statute’s preamble, which stated the congressional intention of assuring “a decent home and suitable living environment for every American family.” But discrimination, Kennedy argued, frustrates that goal, by channeling black families into “substandard, unsafe, unsanitary, and overcrowded housing.”
Civil-rights advocates celebrated the issuance of Executive Order 11063, and immediately set about demanding broader presidential orders. As the president’s critics pointed out, however, he was citing the 1949 act as authority for achieving exactly the opposite of Congress’s intention.
Many of Kennedy’s executive orders were the brainchildren of his Sub-Cabinet Group on Civil Rights, which met regularly, usually at the White House, and almost always in secret. “That way,” one historian has written, “the activities of the group would remain beyond the gaze of southern lawmakers and administration conservatives.”
The Sub-Cabinet Group (of which my late father was a member) reviewed the activities of almost every federal department, looking for ways the administration could, through orders from the White House or even a cabinet secretary, advance the cause of civil rights.
One of the group’s early initiatives was to forbid a traditional practice under which the military police would escort black soldiers out of segregated restaurants in the South. Another was to ban Ku Klux Klan signs from the shoulders of federally funded highways. Washrooms and cafeterias in federal buildings in the South were desegregated. Federal officials were prohibited from addressing racially segregated audiences. And the owners of the Washington Redskins -- the last professional football team without black players -- were quietly informed that unless the team integrated, they would no longer be allowed to use D.C. Stadium. The next year the team brought in three black players.
In most cases, the statutory authority for the order was unclear or simply nonexistent. Some of the initiatives -- such as the ban on Klan messages -- were probably unconstitutional. Kennedy pressed them anyway.
This shouldn’t be taken as more Camelot hagiography. Kennedy’s dedication to civil rights was, to say the least, uneven. Sometimes the reason was competing priorities. This explains, for example, his response to the priest Theodore Hesburgh’s complaint in 1961 about segregation in the Alabama National Guard, as quoted by Kennedy biographer Robert Dallek: “Look, Father, I may have to send the Alabama National Guard to Berlin tomorrow and I don’t want to do it in the middle of a revolution at home.” Kennedy assumed, Dallek writes, “that openly and aggressively committing himself to equal rights for black Americans would somehow undermine his pursuit of world peace.”
Still, Kennedy did issue his executive orders, notwithstanding their shaky legal basis. And Mayer lists many other examples of presidents wielding their authority to defy the expressed will of Congress. One of my favorites is William Howard Taft’s issuance of an executive order in 1912 requiring all department heads to submit their budget requests to the White House -- an order that came immediately after Congress had enacted legislation prohibiting department heads from preparing budgets except at the request of Congress.
I’m not saying that all this presidential unilateralism is a good thing. But it’s a considerable overstatement to call Obama’s use of executive authority unprecedented. In the end, the battle over the Affordable Care Act will have to be fought, if at all, on the merits -- not over whether the president has reinterpreted a law in ways that Congress never intended. For better or worse, presidents do that all the time.
(Stephen L. Carter is a Bloomberg View columnist and a professor of law at Yale University. He is the author of “The Violence of Peace: America’s Wars in the Age of Obama” and the novel “The Impeachment of Abraham Lincoln.” Follow him on Twitter at @StepCarter.)
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