What is he going to do with all that power?

Photographer: Chip Somodevilla/Getty Images

Obama, Executive in Charge

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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One part of the U.S. Constitution stood out above all others in 2014: executive power. Under the presidency of George W. Bush, executive power reached what many considered its apogee, and the topic got a lot of press. During the first five years of the Barack Obama administration, the subject seemed to wane in importance, surfacing occasionally on the topic of drone strikes, and then receding. Now it's back, on issues such as the war against Islamic State, immigration reform and diplomatic relations with Cuba. And we can expect much more concern about the use of executive power during the rest of Obama's presidency, as the lame duck becomes the executive duck in charge.

Executive power first showed up on the public radar this year in September when Obama came under pressure to go to war against Islamic State, which was on the verge of massacring thousands of civilians. The problem was that there was no clear legal authorization for such a war. The administration claimed to rely on both the authorization for the use of military force against al-Qaeda dating to 2001 and the 2002 authorization for war against Saddam Hussein's Iraq. Both were highly doubtful, because Islamic State isn't al-Qaeda and the war against Hussein was to protect the U.S. against Iraq, not to protect Iraq from invasion by Islamic State.

The impending midterm elections more or less guaranteed that Obama wouldn't go to Congress to seek new authorization to go back to war in the Middle East. Doing so would have alienated the Democratic base, which elected Obama to get out of Iraq, not to get back in deeper. And what member of Congress in his or her right mind would want to be on the record supporting new U.S. military efforts in the Middle East? Implicitly, Congress stood by and let the president take action without authorization -- because its members didn't want to pay the electoral price.

After the midterms, of course, the importance of executive power grew because it became clear that Obama wouldn't be able to act through Congress. The extensive immigration reform that Obama undertook depended entirely on the rationale that the president's inherent executive power to execute the law comes with inherent authority to exercise prosecutorial discretion and not execute the law. Republicans criticized the use of executive authority -- but there was little they could do about it short of shutting down the government, as Senator Ted Cruz demonstrated last year to the applause of some Republicans and the chagrin of many others.

The latest iteration is Obama's proposed opening to Cuba. Without Congress, Obama can use the executive power over foreign relations to negotiate, recognize Cuba diplomatically and send at least some sorts of diplomatic representatives. He can also interpret trade regulations loosely and grant more trade licenses.

What he can't do is formally lift the Helms-Burton Act signed by Bill Clinton in 1996, the latest legal iteration of the embargo against Cuba. It remains conceivable that Obama could tolerate open violations of the act under the same theory of prosecutorial discretion that he used in the immigration context -- but so far, he has not threatened to do so.

Senator Marco Rubio immediately threatened to filibuster any nominee for ambassador to Cuba. Congress could also refuse to fund an embassy there. The fight over the extent of executive power regarding Cuba is just beginning.

What lessons can we learn from the emergence of executive power in 2014? The first and most important is that executive power tends to function like a one-way ratchet, regardless of which party controls the presidency. George W. Bush's extensions of executive power looked shocking as they became public, and Obama has eschewed the Bush era idea that the president has inherent authority to violate federal law in order to protect the nation. But that idea nevertheless underwrote Obama's decision not to prosecute CIA torturers who relied on it at the time.

Similarly, previous presidents had used the prosecutorial discretion model to allow some undocumented immigrants to remain in the country. Obama's immigration initiative simply expanded that same rationale to a broader population.

A second lesson is that executive power in the modern era is deeply intertwined with the structure of political parties. When the president and Congress are controlled by different parties, as is the case after the midterms, the possibilities for confrontation are at their highest. That is one reason executive power has become so much more prominent in the last quarter of 2014, after the Senate went Republican. So long as the Democrats held one chamber of Congress, they had at least some chance of acting in coordination between their part of the legislative branch and the executive branch.

The third lesson is that the tools that the founding fathers gave Congress to combat the exercise of executive power have become dated in the era of big government and a vastly expanded executive branch.

Historically, Congress could punish a president with limitations on appropriations. Now, the consequence of withholding appropriations would be to shut down the government -- an action with considerable political risk. Obama can look Congress in the eye and tell them to do their worst, because he knows that they know that the political price for shutting down government would be high.

The same problem dogs Congress’ relationship to the use of force. When there were no standing armies, a president could not deploy troops without specific authorization and appropriations -- because there were no troops to deploy and no ships to position. Congress, for its part, could not escape responsibility for wars, because no wars could occur without its funding. Today, the president can bomb for long enough to bring down regimes -- consider the case of Libya -- using planes and bombs that are already in the arsenal.

The next two years will place further pressure on the uses of executive power. As the example of the CIA's torture program reminds us, this is the constitutional area most ripe for abuse. Those who applaud Obama's newfound initiative should keep that concern in the back of their minds.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net