Obama: The art of disguised unilateralism

As a presidential candidate back in 2008, Barack ObamaBarack ObamaOvernight Regulation: Trump administration reveals first regulatory agenda | GOP lawmakers introduce measures to repeal arbitration rule | Exxon gets M fine for sanctions violation Mounting nationwide immigration enforcement costs 20 attorneys general urge DeVos to keep college sexual assault protections MORE pledged to conduct an administration guided by the principles of open government and shared powers. As he put it, “transparency and accountability will be a hallmark of my administration.” He was openly critical of his predecessor, George W. Bush, for a lack of transparency and for pushing the constitutional limits of presidential powers.

In practice, however, Obama’s actions showcase merely the appearance of transparency and respecting constitutional boundaries. The president has employed a number of techniques to disguise unilateral actions while making himself and his administration seem open and accountable. 

ADVERTISEMENT
The latest conflict over the president’s immigration action is just one case in point. News reports prior to the president’s national speech took it as given that the president was about to issue an executive order. But in his speech announcing his action, the president made no mention of an executive order or any other legal authority. Reports followed with the descriptor “executive action” given the lack of any announcement of how exactly the president issued his decision. 

The president ultimately made policy by directing his Department of Homeland Security secretary to issue a memorandum, which unlike an executive order is not usually published in the Federal Register - a government series that includes all rules, regulations, or orders that have the force of law - although it carries the same policy effects if left unchallenged. When confronted about the overuse of unilateral executive decisions, the president’s press secretary referenced data showcasing that the president has issued fewer executive orders than his predecessors – a statement that is superficially accurate but disguises the reality of all of Obama’s actions that carry the weight of executive orders but that he issued under other names.

The low number of executive orders largely is a function of the president issuing instead many presidential memorandums. In other cases Obama has issued presidential policy directives, which also function as executive orders but by another name. As in the case of his immigration action, Obama has had department secretaries issue an order or memorandum. Obama can thus claim that he has not issued as many executive orders as George W. Bush or many other presidents while taking as many, and perhaps more, unilateral actions.

Also consider the president’s use of signing statements, where he has made tracking his decisions even more complicated. Although, like with executive orders, Obama has issued fewer signing statements than his predecessors, he has used other little known mechanisms such as “Statements of Administration Policy” and the opinions of the Office of Legal Counsel to alter the content of legislative enactments. These have become supplemental tools that have permitted Obama to cut down on the number of signing statements while continuing to make constitutional objections to legislative acts.

These techniques allow the president to employ constitutional limitations on laws without much risk of public criticism. The press generally does not report on Statements of Administration Policy, nor does Congress pay much attention to these. The Office of Legal Counsel has no statutory obligation to publish its opinions and, in fact, some are keep secret for many years.

In addition, the Weekly Compilation of Presidential Documents has traditionally been the easiest go to source for all signing statements. However, in 2009 the Obama administration discontinued that publication while at the same time it redesigned the White House website making it extremely complicated to track his signing statements. These devices provide ways for Obama to conceal his constitutional and legal objections to signed laws while stifling debate over his use of presidential powers. 

The president has concealed information while avoiding formally invoking executive privilege, resulting again in White House assertions that he has issued fewer executive privilege claims than his predecessors all the while engaging in at least as much secrecy. He fulfilled a pledge to publish the White House visitors log, but then refused to provide any information beyond a long list of names, such as who the visitors represented and the purpose of their visits. 

Many other examples abound of the Obama White House concealing executive actions. As a presidential candidate in his first run for the office Obama joined the chorus of criticism of George W. Bush for pushing the limits of presidential powers. Perhaps the president was sincere in his views at that time and now things look very different to him from the inside. If so, he is not the first president to have criticized his predecessors for not being open enough or careful in the exercise of their powers but then acted differently once in office. However, if the former constitutional law instructor now believes differently about transparency issues and separation of powers, a direct defense of the powers of his office and an honest debate to follow would be far better than the current path of concealing his powers by clever disguises. 

Sollenberger is associate provost for Undergraduate Programs at University of Michigan-Dearborn and Rozell is the acting dean of the School of Policy, Government, and International Affairs at George Mason University. They are authors of the book The President’s Czars (University Press of Kansas, 2012).