President Obama stated in his 2014 State of the Union address that "whenever and wherever I can take steps without legislation to expand opportunity; that is what I'm going to do." Congressional Republicans are unsurprisingly trying to put the brakes on the President's efforts. Shortly after President Obama came into office Mitch McConnell, Senate Republican leader, said that "the single most important thing we want to achieve is for President Obama to be a one-term president." This comment was followed up on by an extreme level of obstructionism in various areas included a record number of filibusters for cabinet-level nominees. Now, House Speaker John Boehner is leading the charge to sue President Obama for excess usage of administrative tweaks and executive orders.
The question of how far an executive can deviate from the will of the legislative body is usually based on the political strength of and influence of the President's party in Congress or a substantial electoral mandate. There are typically three different views of executive power. The restricted or literalist view was described by ultra-conservative President William Howard Taft as the President exercising no power which cannot be fairly or reasonably traced back to some specific grant of power or justly implied and included within such express grant as proper and necessary to its exercise. Taft did not view the President as a free agent but rather as an agent of Congress.
The stewardship view of the executive represents a sharp contrast from the restricted view. President Theodore Roosevelt described the President as being free to take any action that was not explicitly outlawed by the Constitution or other law of a statutory nature. Roosevelt used the executive order to acquire vast amount of privately owned land to create national parks. James K. Polk used executive action to take New Mexico and California (present day California, Arizona, Nevada, New Mexico, and Utah) by force after Mexico refused to sell it. After the land was conquered, Mexico forfeited the land for a mere 15 million dollars.
There is also a prerogative theory view of executive power that posits under certain conditions, the chief executive possess extraordinary powers to preserve the nation. There are those things which the law cannot provide for and must be left to the discretion of the person that holds executive power. An example of this was the executive order to free the slaves that Abraham Lincoln issued known as the "Emancipation Proclamation." Later, when some presidents have sought to use extraordinary executive power, some were checked by the Supreme Court. The court rejected some of Franklin D. Roosevelt's efforts to expand the scope of the government during the Great Depression while others were permitted.
A good argument can be made that President Obama has the prerogative to take executive action in certain "crisis" scenarios. These scenarios could involve the humanitarian crisis that is currently playing out with undocumented children at the border, the budget crisis facing the School District of Philadelphia, the epidemic of violence in cities like Chicago, and other pressing concerns across the country. Federal intervention through executive action is especially needed in cases where Governors are blocking much needed federal aid in the form of Medicaid expansion and voter rights protection from unnecessary barriers to the ballot box among other issues. In light of President Obama's extensive efforts during the course of his tenure to foster bipartisanship in the hopes of Congressional action to little avail and the critical urgency of the moment, the President has the prerogative to pump the gas on the usage of the various mechanisms of executive power for the expansion of opportunity for all people.
Marcus Bright, Ph.D. is the Executive Director of Education for a Better America and an Adjunct Professor in the School of Public Administration at Florida International University and Florida Atlantic University
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