The Brennan Center is an impressive public interest organization with an equally impressive staff of lawyers who advocate for legal reforms. While widely viewed as a liberal and pro-Obama organization, it often offers well-reasoned and compelling legal analysis. It is out of this respect for its work that I have to take a moment to criticize an aspect of its recent publication of “15 Executive Actions” for President Obama to take to counter opponents in Congress. Authors Michael Waldman and Inimai M. Chettiar are both highly credible and respected individuals in this field. I clearly do not agree with them on their view of Obama’s unilateral actions. I recently testified (here and here and here) and wrote a column on President Obama’s increasing circumvention of Congress in negating or suspending U.S. laws. However, one argument appears to have become a “talking point” with the White House and, in my view, should not appear in any serious academic or legal analysis: the simple comparison of the number of executive orders by presidents as a measure of their relative circumvention of Congress.
Waldman and Chettiar write at the beginning of their publication:
Predictably, the administration’s new focus on executive action has ignited controversy. Congressional opponents have held hearings on “the President’s Constitutional duty to faithfully execute the laws.” Media commentators hyperventilated on cue. “Executive Order tyranny – Obama plans to rule America with pen, phone,” warned Fox News commentator Andrew Napolitano.
Is the president’s new strategy a euphemism for overreach? Hardly. President Obama has issued executive orders at a slower pace than all recent predecessors. Obama issued 147 such orders in his first term. By comparison, Harry Truman issued 504 in his first term; Dwight Eisenhower, 266; John F. Kennedy, 214; Lyndon Johnson, 325; Richard Nixon, 247; Gerald Ford, 169; Jimmy Carter, 320; Ronald Reagan, 213; George H.W. Bush, 166; Bill Clinton, 200; and George W. Bush, 173.
I can certainly understand their view of the need for aggressive use of executive powers, though I disagree with them. I have written a couple of law review articles challenging the constitutionality of such actions: See Jonathan Turley, Recess Appointments in the Age of Regulation, 93 Boston University Law Review ___ (2013) and Jonathan Turley, Constitutional Adverse Possession: Recess Appointments and the Role of Historical Practice in Constitutional Interpretation, 2103 Wisconsin Law Review ___ (2013). However, the use of the numerical comparison of executive orders is rather intellectually dishonest and undermines the credibility of their work. It is obviously simplistic and misleading to suggest that the number of such orders measures the degree to which a president is overreaching on executive power. You could have one executive order that effectively guts the separations of power or 500 such orders that are largely house-keeping or minor clarifying measures. It is like saying that a corporate executive who steals $1 billion dollars is manifestly less culpable than a street criminal with 100 theft arrests.
I have become used to politicians repeating this comparison because I expect little from them in terms of constitutional analysis. However, the Brennan Center should be more than an echo chamber for the White House press office. When I was asked about this comparison in the last hearing I strongly counseled members to turn to more substantive arguments if they support the President, noting “you can’t look at the raw numbers any more than you look at raw numbers of bills passed to determine how effective a Congress is. You have to look at what’s being done.”
What is remarkable is that this argument is so fallacious that even the witness supporting the Administration at my last hearing agreed with me that the argument was vacuous and meaningless. Professor Christopher Schroeder is the Murphy professor of law and public policy studies at the Duke University School of Law and previously served in the Administration as the assistant attorney general in the Justice Department’s Office of Legal Policy as well as acting assistant attorney general in the Office of Legal Counsel at the Justice Department. He agreed that the argument is valueless since “It’s not the numbers, it’s the quality.” Indeed, all of the experts at that hearing were unanimous on this point despite our disagreements on most other points. We were uniform in rejecting this numerical comparison.
I respect people like Professor Schroeder on the other side of this debate. We clearly have different views of the separation of powers but as academics we try to advance credible and substantive arguments. Anyone familiar with this area would hopefully know that this statistical argument is misleading and meaningless on the merits of executive overreach. I can understand the citation of the number of such orders in looking at the history of the presidency (and I have done so in past academic publications). There are serious questions raised by executive orders as a general matter and the growth of such order do raise concerns. However, in this specific controversy, it is being used to distract from the unprecedented level of circumvention ordered by this president. The clear thrust of the use of the comparison (as with White House statements using the same figures) is that the concerns over President Obama can be disproven statistically. It is that suggested meaning that was rejected by all of the witnesses, including the witness called to support the White House and a previous Obama Administration official.
Let’s have a robust and meaningful and honest debate of this important issue. The Brennan Center should rightfully be in the very center of that debate. However, such argument will advance neither the debate nor the Center’s credibility on the use of executive overreach.
Source: Brennan Center