Charles Savage's Latest

I respect Charles Savage's reporting/analysis over the years regarding executive power, including in the Obama Administration, but some aspects of his "Shift on Executive Power Lets Obama Bypass Rivals" piece leaves something to be desired.  It is getting some attention, Election Law Blog saying it is a "must read" and (shocker) a Volokh Conspiracy conservative uses it to show "him too" on executive power. Marty Lederman, previously having the job of defending him in-house, provides some useful balance here.

For Mr. Obama, that meeting was a turning point. As a senator and presidential candidate, he had criticized George W. Bush for flouting the role of Congress. And during his first two years in the White House, when Democrats controlled Congress, Mr. Obama largely worked through the legislative process to achieve his domestic policy goals. 

But increasingly in recent months, the administration has been seeking ways to act without Congress.

The overall thought here is that once people enter a position, there previous doubts regarding it tend to become at least somewhat altered. Jefferson, e.g., was able to live with himself once President doing things like negotiating a treaty to obtain Louisiana without amending the Constitution.  Robert Jackson and others changed positions once they left the executive department to go on the Supreme Court.  Also, Obama never was as civil liberties friendly as some on the left seem to believe. It was a matter of degree.  For instance, he never said he was against ALL signing statements.  Finally, with Republican control of the House and a few pick-ups in the Senate, and particular forceful obstructionism, obviously his approach would change in various respects.

So, my concern is that the piece speaks of a "shift" that has occurred to some degree but on some level [and this part is fine and informative], there was never some "pure" position anyways.  This seems misleading on some level.  We also read a critic note "Still, he said, because of Mr. Obama’s past as a critic of executive unilateralism, his transformation is remarkable."  But, Obama was never a total critic and his "executive unilateralism" can be exaggerated. Presidents are by design "unilateral" to some extent anyways.

“Obama’s not saying he has the right to defy a Congressional statute,” said Richard H. Pildes, a New York University law professor. “But if the legislative path is blocked and he otherwise has the legal authority to issue an executive order on an issue, they are clearly much more willing to do that now than two years ago.” 

As ML notes, telling point.  The article, e.g., notes that Obama decided "to stop defending" DOMA. But, he still is enforcing it. You might not know this key fact from the piece.  Nor, that this was done in the past.  Cf. Bush's executive power veto of torture laws etc.  As to waivers, often laws allow that. Is this a "shift" of some sort?  Did he never give waivers early on? This is not just a mild if important change in tone -- like the author of Miral suggested yesterday on Chris Hayes was the difference between Obama and Romney on foreign policy (more finesse; Romney will piss people off more while Obama will do things like promote freedom in Egypt and get Nobel Peace Prizes apparently just for showing up while using drones etc.).  There is some difference in kind. 

First, he proposed a jobs package and gave speeches urging lawmakers to “pass this bill” — knowing they would not. A few weeks later, at the policy and campaign strategy meeting in the White House’s Roosevelt Room, the president told aides that highlighting Congressional gridlock was not enough.

This seems pretty standard stuff as is the ability of the executive -- by executive orders etc. -- to work within the existing laws. No examples are provided on what exactly Obama did in this respect here, but it's informative to show how things work when a President is blocked by Congress.  The recess appointment issue also was cited.  It was not noted that without a new consumer financial protection bureau head, the law would not be able to be carried out.  The special nature of the obstructionism (I don't recall a similar Democratic move of late; e.g., when the Democrats with a bit of Republican support blocked Bolton, the administration still could put an assistant there and the Democrats didn't want a new treaty or a change in UN policy before voting for any UN representative) is essential to know the full story. The article does touch upon how the level of obstructionism altered the balance of power, leading Reid to accept the move.

Executive orders are again cited, but Presidents always have the power to use them, and Obama long before now used them in various cases (e.g., regarding abortion funding) in a policy way.  There is some "ho hum" nature of what is going on here, but yet again Bush and Obama weren't just peas in a pod:

“This is what presidents do,” Mr. Goldsmith said. “It’s taken Obama two years to get there, but this has happened throughout history. You can’t be in that office with all its enormous responsibilities — when things don’t happen, you get blamed for it — and not exercise all the powers that have accrued to it over time.”

The reason why such a diverse coalition was upset under Bush was that he did things more bluntly, went further, even when working with Congress would get much of what he wanted.  The power of the executive in the 21st Century, especially in national security areas where it is hard to find a forceful enough counterweight (Obama in fact notably wanted less free reign than the House Republicans wanted to give the executive), is troubling.  No matter who's in power. Also, it is useful to understand how checks and balances work, including executive push-back, and not be surprised when it occurs.

I guess it is a good piece overall, but with some grains of salt.