The Letter of the Law: Administrative Discretion and Obama’s Domestic Unilateralism

Abstract

Abstract:In his 2014 State of the Union address Barack Obama pledged to act without Congress on a variety of fronts, following up his "we can't wait" campaign of unilateralism before the 2012 election. The partisan furor this engendered tended to obscure the longstanding efforts of presidents to "faithfully execute" the law in a manner that aligns with their policy preferences. This paper examines the broad logic of those efforts, and delineates five areas where the Obama administration has been particularly aggressive: in its (1) recess appointments; (2) refusal to defend federal law (notably, the Defense of Marriage Act) in court; (3) use of prosecutorial discretion in declining to pursue violations of immigration and drug laws; (4) use of waivers; and (5) its utilization of the regulatory process to interpret the meaning of statutes, as with the Clean Air Act and the Affordable Care Act. Presidents do have flexibility in many cases; but this ends where they seek to alter the plain "letter of the law."

Administration, rhetoric, and climate policy in the Obama presidency

“…Instead, he would go it alone by more aggressively focusing on executive authority (Allen & Brown, 2013, Crouch et al, 2013). Subsequently, the Obama administration issued approximately 3500 rules in his first term, 10% of which were regulatorily significant and subject to the Office of Management and Budget review process (Rudalevige, 2014). Obama also embraced the use of signing statements to circumvent the vicissitudes of legislation that work in often unwelcome ways for sitting presidents (Crouch et al, 2013).…”

“…By doing so, he pushed the bounds of more informal tools of the office, such as memoranda and waivers, that were often more difficult to translate into existing law but, once in force, were “policy‐consequential” and carried the full force of law (Milkis & Jacobs, 2017, p. 589). Notably, such efforts were focused on a host of wicked problems but especially on the environment and climate change where Obama found a wholly unreceptive Congress (Coglianese, 2009; Lowande & Milkis, 2014; Milkis et al, 2012; Milkis & Jacobs, 2017; Rudalevige, 2014, 2016b). In this regard, how Obama rationalized his use of the administrative actions with rhetoric is informative of his views of presidential power, and the role executive action plays in addressing climate change.…”

“…The way in which he rationalized the use of administration action reveals an evolving view of bureaucracy in implementing policy, including under what conditions unilateral executive action is justified and whether there are, or should be, any limits to such action. While presidents routinely push the boundaries of their authority (Milkis & Jacobs, 2017; Rudalevige, 2014), it is important to consider what Obama's administrative and rhetorical actions signal about the state of U.S. federal climate policy. To this end, we review his speeches and public comments to understand how he rhetorically justified the use of administrative action on climate change.…”

Exercising Unilateral Discretion: Presidential Justifications of Unilateral Powers in a Shared Powers System

“…The Courts have generally been deferential to the executive, especially on matters involving executive prerogative, in times of crisis and when the president has taken decisive action (Melnick, 2005). The president has flexibility to execute the laws but this ends if he seeks to alter the "plain letter of the law" (Rudalevige, 2014). The Court's doctrine of decision making on cases involving executive power favors the president and, even when challenged, presidents are more likely to reap outcomes favorable to their use of executive power (specifically challenges to the use of executive orders) when the majority of the justices deciding the case are from the same political party as the president (Howell, 2003).…”

The Contemporary Presidency: The Obama Administrative Presidency: Some Late‐Term Patterns

“…Some of the delays in question were achieved by what the Treasury called the exercise of its “longstanding administrative authority to grant transition relief when implementing new legislation,” others by rules changes announced by an administrative bulletin issued by the Centers for Medicaid and Medicare Services (Rudalevige , 17–18). Waivers to the provisions of laws such as the No Child Left Behind Act. These waivers were granted by the Secretary of Education under authority granted in turn by, well, the text of the No Child Left Behind Act (Rudalevige , 47). Deferring deportations of certain people not “lawfully present” in the United States. The two stages of this story (discussed in detail below) were carried out at presidential direction by the Secretary of Homeland Security via guidance documents implementing the Immigration and Nationality Act, as a means of setting priorities for the Department of Homeland Security (DHS) given insufficient resources to deport everyone eligible to be deported. Selective enforcement of other laws , for instance, choosing not to use federal law to override state‐level legalization of recreational marijuana.…”