There have been mixed messages from the White House in advance of President Barack Obama's fifth State of the Union message next Tuesday. Will he be emboldened by the fact that he is approaching the home stretch of his presidency? Or will he be humbled by the limits of his power?
Let's hope he's bold. This is not a moment in history when all is well and the president needs only to be a caretaker. On the contrary, whether the issue is income disparity or immigration reform - or most important of all, global climate change - Congress's inexcusable dereliction of duty makes it critical that President Obama spend his final three years pushing hard against and even redefining the boundaries of presidential authority.
I have written before about these boundaries and particularly about the precedents set by the two Roosevelts. It's important to recall them again.
President Theodore Roosevelt felt it was his duty to protect America's natural heritage. To do so, he interpreted his authority more broadly than his predecessors.
"My view was that every Executive Officer . . . was a steward of the people bound
actively and affirmatively to do all he could for the people and not to content himself with the negative merit of keeping his talents undamaged in a napkin..," he wrote. "My belief was that it was not only his right but his duty to do anything that the needs of the Nation demanded unless such action was forbidden by the Constitution or its laws." (Emphasis mine)
"Under this interpretation of executive power I did and caused to be done many things not previously done by the President and the heads of departments," he continued. "I did not usurp power but I did greatly broaden the use of executive power. In other words, I acted for the common well being of all our people whenever and in whatever measure was necessary, unless prevented by a direct constitutional or legislative prohibition."
Franklin Delano Roosevelt, faced with the Great Depression and World War II, adopted an even more aggressive view of his authorities. In an address to Congress, Roosevelt summed up his philosophy as follows: "In the event that Congress should fail to act, and act adequately, I shall accept the responsibility, and I will act."
FDR's philosophy was called the "prerogative theory" -- the power of the President to act at his discretion for the public good without explicit legal authority--sometimes even in violation of a law which the President believes impinges upon the common good. Because he enjoyed broad public support, FDR was often able to persuade Congress to give him new authorities after he had already exercised them.
For reasons that should be obvious, the most important issue remaining for the Obama Administration is global climate change. Without confronting it in the United States and globally, it will create pervasive and permanent damage to the health and welfare of the world's people - an environment in which noble goals such as closing the income gap pale in importance.
I am not an attorney, but unhampered by educated incapacity, four assumptions come to mind.
First, the balance of power institutionalized in our system of government should apply to acts of omission as well as commission. In other words, the Executive Branch has the right, if not the obligation, to lead where Congress fails to lead on matters of critical national importance.
Second, the President has an obligation - the same obligation Theodore Roosevelt recognized in his "stewardship" theory of executive authority - to protect the assets that belong to all Americans, present and future. Today, the assets most in need of protection are the atmosphere, the oceans and the many living systems jeopardized by climate disruption. They are "public trust assets"; public officials are trustees responsible for protecting them on behalf of us all.
Third, in failing to act against global climate change Congress is breaking the spirit if not the letter of its own laws. The President would be remiss not to obey them himself. Consider these congressional pronouncements in several of the nation's leading environmental statutes:
• In the National Climate Program Act of 2000, Congress said it "finds and declares (that) weather and climate change affect food production, energy use, land use, water resources and other factors vital to national security and human welfare".
• In the Global Climate Protection Act of 1987, Congress said "While the consequences of the greenhouse effect may not be fully manifest until the next century, ongoing pollution and deforestation may be contributing now to an irreversible process. Necessary actions must be identified and implemented in time to protect the climate."
• In the legislation governing the U.S. Global Change Research Program, Congress said, "Industrial, agricultural, and other human activities, coupled with an expanding world population, are contributing to processes of global change that may significantly alter the Earth habitat within a few human generations...Such human-induced changes, in conjunction with natural fluctuations, may lead to significant global warming and thus alter world climate patterns and increase global sea levels. Over the next century, these consequences could adversely affect world agricultural and marine production, coastal habitability, biological diversity, human health, and global economic and social well-being."
• In the National Environmental Education Act, Congress declared, "There is growing evidence of international environmental problems, such as global warming, ocean pollution, and declines in species diversity, and that these problems pose serious threats to human health and the environment on a global scale."
Elsewhere in the nation's laws, Congress wrote, "It is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may fulfill the responsibilities of each generation as trustee of the environment for succeeding generations...The Congress recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment."
Finally, the President's legal staff might explore this question: Can a president use his or her emergency powers to prevent an emergency in the making, or does catastrophe have to strike first? Some scholars argue that one of the attributes of a national crisis is that it's a surprise. After generations of climate scientists have warned us about this crisis in the making, only deniers will be surprised, but that should be enough.
Climate change presents an exceptional case because once it becomes a national crisis in the usual sense of the word, it will be too late to fix it. Many of its impacts will be irreversible. Can the President declare that the emergency already is underway in the form of sea level rise, extensive drought, increasingly severe wildfires, repeated extreme weather events, and the continuing accumulation of carbon emissions in the atmosphere with impacts that last centuries?
In a legal analysis of the Chief Executive's emergency authorities commissioned by the Presidential Climate Action Project, the Center for Energy and Environmental Security (CEES) at the University of Colorado Law School concluded: "If the President is bold enough and has sufficient political capital, he or she can assert power on the controversial and uncertain premise of inherent executive power to protect the country...(on) the occasion that regular powers cannot protect the interests of the nation satisfactorily."
While there are all sorts of nuances in law and no guidance in the Constitution about what constitutes an emergency or what the president's emergency powers are, the CEES noted that the Supreme Court's ruling in Massachusetts v. EPA, "suggests that the current Supreme Court might be sympathetic to the argument that global climate change is a crisis."
The President's mission in Tuesday's address is to summon the will of the people and to build his political capital for a very active home stretch. Polling data as the State of the Union address approaches show that eight of every 10 Americans disapprove of Congress' job performance. When he steps up to the podium Tuesday evening, he will be addressing a nation that's disgusted with gridlock in Washington.
In one of its stories leading up to the State of the Union address, the New York Times reported that "these days, Mr. Obama envisions a more modest place in the tide of history. 'At the end of the day, we're part of a long-running story,' he told David Remnick of The New Yorker. 'We just try to get our paragraph right.'"
But President Obama's paragraph will determine the plot of the entire long-running story. So make it one hell of a good paragraph, Mr. President. Make it a story your children and ours will read with pride.