Obama flexes executive powers, bypassing congressional opposition

President Obama increasingly is using his executive authority to move his policies forward when confronted with congressional opposition.

The administration chose not to defend the federal Defense of Marriage Act banning gay marriage, and Obama bypassed military tribunals and the Guantánamo Bay prison in Cuba to send an accused terrorist from Somalia to a U.S. civilian court. 

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The latter effort was seen as a backdoor way to circumvent congressional opposition to civilian trials for terrorism suspects.

The president also has granted immigration officers greater latitude when deciding whether to deport illegal immigrants, and has determined the War Powers Resolution requiring congressional authorization for military actions does not apply to the intervention he ordered in Libya.

Most recently, Congress has been abuzz with the possibility that Obama could bypass its authority altogether and raise the debt ceiling using the so-called “14th Amendment solution.”

Like other presidents before him, Obama is using executive authority after being rebuffed by a Congress controlled by the other party. Republicans enjoy a large majority in the House, and they are on the rise in the Senate. 

The aggressive steps by Obama have prompted criticism from Rep. Lamar Smith (R-Texas), chairman of the House Judiciary Committee. 

“Our Founders created a system of checks and balances to prevent any one branch of government from having too much power over the people,” Smith said in a statement to The Hill.

“Unfortunately, it appears that the president has little respect for the laws passed by Congress or the will of the American people,” he added. “If the president’s abuse of executive authority continues unchecked, it could set a very dangerous precedent for future presidents and seriously weaken our democratic system.”

The White House declined to comment for this article.

Smith has specific complaints with a memo issued last month by Immigration and Customs Enforcement (ICE) that allows agents to consider outside circumstances such as academic records and family situation when considering whether to defer deportation of an illegal immigrant.

The move is thought to be a way to circumvent Congress’s inability to pass the Development, Relief and Education for Alien Minors (DREAM) Act, which would create a pathway to citizenship for certain children born to illegal parents. 

Rep. Pete King (N.Y.), the GOP chairman of the House Homeland Security Committee, took issue with Obama’s decision last week to try a Somali man, Ahmed Abdulkadir Warsame, in a New York City civilian court. 

The move to try Warsame in a civilian court is seen as a way to bypass the closure of Guantánamo by not sending additional prisoners to Cuba. Warsame is accused of conspiring with terrorist groups al Qaeda and al Shabbab.  

“Warsame is a foreigner and an unlawful enemy combatant,” said King, who has supported keeping the prison in Cuba open. 

“The decision for discreetly bringing such an individual to U.S. soil is unclear," King added. “Unless the administration has extremely compelling reasons, I strongly believe Warsame belongs before a military commission at Guantánamo Bay rather than in a civilian court in Manhattan.”

Obama sought to close the Guantánamo prison in one of his first actions as president, but was unable to do so because of opposition from both parties in Congress. 

King acknowledged that most presidents seek to flex their executive authority when they run into congressional roadblocks.

What’s unusual with Obama, King said, is that the president campaigned against former President George W. Bush’s far-reaching use of presidential power. 

“He’s the president,” King said in an interview. “It sort of goes with the territory, I think. What may be different is that he sort of campaigned as if he was not going to do that.”

In the wake of the 9/11 attacks, Bush expanded his office’s executive authority in ways that many on the left said were egregious. Bush said his extensive use of power was geared toward protecting the country. 

Congress initially bent to Bush’s will, but Democratic lawmakers became more vocal throughout his second term. In a 2007 radio interview, Obama said that one of his first moves as president would be to look at the constitutionality of the executive orders issued under Bush.

Now it is Obama who is raising questions of exercising egregious executive power. 

Garrett Epps, a professor at the University of Baltimore School of Law, said it was surprising to see Obama wielding so much unilateral executive power, given his criticism of Bush. 

“President Obama criticized the Bush administration before his election, but he has been quite striking in his unwillingness to give back much of the territory previous presidents, and George W. Bush in particular, captured,” he said. “I expect that trend to accelerate now that he faces a House even more hostile than the one elected in the GOP landslide of 1994.”

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