The Brennan Center Repeats Rejected Statistical Comparison Of Executive Orders and Executive Overreach

President_Barack_ObamaUnknownThe 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

42 thoughts on “The Brennan Center Repeats Rejected Statistical Comparison Of Executive Orders and Executive Overreach”

  1. “…President Obama’s increasing circumvention of Congress in negating or suspending U.S. laws,” said Professor Turley. Is that a fact? That sounds a lot like illegal usurpation and treasonous insurrection to me, though I’m usually wrong.

    Seriously? You just said that? And you sit idly by?

    “All that is necessary for the triumph of evil is that good men do nothing,”

    or possibly more accurately,

    “When bad men combine, the good must associate; else they will fall one by one, an unpitied sacrifice in a contemptible struggle” – Burke.

    We have accepted the perversion and corruption of the American thesis, intent of the Founders and Constitution for 225 years. We are now mired in the deep, twisted psychosis of the cogitations of one Karl Marx, replacing one form of injustice and discrimination with another, and employing arbitrary central control and deincentivizing redistribution, which emerges directly from the Communist Manifesto, and is comprehensively opposed to the concept of personal and economic freedom demanded by the Framers.

    Freedom! “You can’t handle the truth!”

    With all due respect.

  2. The issue at hand, that is the impact of Obama’s Executive orders rather than the number, I think is one of the most trenchant observations Professor Turley has made, having considered the vast scope of his writings, a comment I paused before making. I hope for, but often am disappointed, by the anticipation of irenic discourse over this important concept. The expansion of executive prerogatives and privileges is a burgeoning one, not a novel one in the last few decades. Its roots traceable to the beginnings of the 20th Century, while the FDR Progressive Era’s excrescent expansion is well known by any one familiar with bureaucratic growth.
    The quantity and quality of the most basic of American tenets, the iconic “consent of the governed” is an old argument in the topic of Regulatory governance, and it is found in such works as Ernst Freund, Felix Frankfurter and the American Rechtsstaat, the combined works of Woodrow Wilson, that is Congressional Government, and Constitutional Government. The impact of Herbert Croly’s The Promise of American Life. The pros and cons of Administrative Governance are well known to all here, and the reductio ad absurdum of a bridge to the 18th Century, loss of women’s rights, or a return to dirty air and water, are of course discounted for what the comments are. The Brennan Center idea that the numbers are vindication of any executive order is equally discounted, along with the tortured idea that racism is the basis for objecting to the current administrations policies as reflected in his use of the executive order.
    I do not believe any considerate commentator here thinks Professor Turley under the yoke of a daunting misoneism, or that he is an advocate of a filiopietistic yearning. The question is a valid one, and also seems to beg the question of have we hit a ne plus ultra in the modern administrative state ?? If one of the uses of ne plus ultra is observed, this far but no further, are we denying Obama his legacy goals? I am not one that thinks tu quoque is a legitimate response to all executive orders. Comprehensive reform was promised by Obama, and to that end Paul Verkuil was appointed to the ACUS. I am still awaiting something beyond Remand without Vacatur, as deeply comprehensive as that may sound to some, I am still disappointed there.
    Comprehensive regulatory reform is a mandate for us as a nation. The perils of the “revolving door”, ‘capture’, are to well known to repeat here. I do not understand why any liberal aware of the Madisonian heritage of liberal intellectual thought is not alarmed at this topic. I view Professor Turley as of the few, my respect for him immense.
    During the Clinton Adminstration executive order 12,866 called for agencies like the EPA to engage in a cost benefit analysis.. I yearn for an executive order that calls for a constitutional integrity analysis, that assures that government is not changing it’s own powers, without the iconic ‘consent of the governed’. Madison left us the following :” The important distinction so well understood in America, between a Constitution established by the people and unalterable by the government, and a law established by government and alterable by government, seems to have been little understood and less observed in any other country”. Are we as aware of that concept today as Madison’s generation was ?? When an executive order usurps, is tu quoque a valid response, if the partitions of the constitution are moved ??

  3. Paul: I’ll apologize when you stop repeating baseless talking points that distort the truth. In other words, never.

    The Tea Party *tm originally termed its members as Tea Baggers. I maintain that it was Dick Armey’s little inside joke on all the astroturfers.

    BTW, there have been about five solar companies that received grants that ended up going bankrupt, all of which have not caused as much harm to the economy as Enron did. How can you tell a Tea Bagger? When they don’t whine about corporate illegality.

    Another way you can tell a Tea Bagger is when they equate unemployment insurance with welfare. Economists don’t often agree on much, but one thing nearly all them do agree on is how important unemployment payments made to laid off workers was to saving the economy from total collapse.

    1. RTC – you may be right about the Teabagger thingie. Did some research and some Democratic sites back you up, but they do have pictorial support. So, for the time being, I will give it to you. However, when you use the term, you are not talking about someone wearing a tea bag, and you and I both know it. For you it is a sexual insult. ‘Fess up.

      I not only whine about corporate illegality, I want them drawn and quartered. Guess that does not make me a Tea Bagger.

      Extending unemployment insurance is the same as welfare since it is paid by the federal government, not the individual. In Arizona, each employee and their employer pays into a fund in case they become unemployed. That money is used for their unemployment benefits. Extending those benefits is not a state function or a function of the business, it is a function of the federal government. If you remember, Congress just voted to extend payments again. Ergo, it is a form of welfare (something not earned).

  4. It is pretty evident that even a discussion about how government is to work eventually deteriorates into a “he said, she said; blue team, red team; us, them” situation. The founding fathers tried to plan for the shortcomings of the human condition in general, hence their solution for a new government. Everyone’s aware of Benjamin Franklin’s famous pessimistic outlook on how long the government could last. I think these continual “tit for tat” side arguments make the point that any law should be a bruising gang fight in congress, one that still has to be fought out with the President, then possibly with the court. EOs let everyone off the hook. Congress can be lazy. They seem to be happy to point the finger, no matter the party. The plan, “Let him write another EO, then we’ll just beat on him in the press and drive his approval ratings down until it’s our turn, then the other team will point the finger and do the same thing” is no longer a strategy option to run government. We all want quick laws that we just want, we don’t enforce the laws we have, we have no idea the gift in time we’ve been handed down… we’re all losers in this scenario

  5. Paul S: It is pure fiction and an utter lie to claim that Obama has refused to work with Republicans. It is the Republican Party that has steadfastly refused to consider any of the President’s proposals, particularly those that were considered to be manifestly helpful to improving the economy. They even declared this reticence was a major campaign strategy to defeat Obama’s re-election.

    The Republicans have forced, are forcing, and will force Americans to suffer continued economic hardships by refusing to take up any measure that the President proposes for job creation and tax relief, to name a few.

    Moreover, Obama has gone way out of his way to achieve compromises with republicans, particularly early in his administration, in allowing repubs to get the upper hand in those deals, such as extending the Bush tax credits for billionaires in exchange for a few months of unemployment insurance.

    Obama hasn’t refused to work with repubs; he’s given up on hoping they will ever work with him.

    You know Paul, you often try and pass yourself off as an intelligent guy. The best way to keep up that appearance is not to make claims that are refuted by the cries issuing from the foam-flecked mouths of the angry Tea Bagging psychopaths elected by ignorant hate-filled and fearful dupes.

    1. RTC – manifestly helpful is in the eye of the beholder. Remember all those shovel-ready projects that were not shovel ready? Remember all the grants to solar firms that went bankrupt? You are sounding a little foam-flecked yourself today. Teabagging is a sexual insult, please apologize and stop using it.

  6. Dredd,

    Thanks for the info. I didn’t remember that is how the Neutrality Act came to be. I guess that did test the waters for extra constitutional authority. Because I am lazy, and didn’t look–how long was it before the next similar situation occurred when Prez acted unilaterally? Not for justification, but just to see “how the ball really got rolling.”
    I think we are all pretty much in agreement–except for the folks who remain entranced in this current cult of personality–it is time to push back against the EO, and anyone who writes to justify them. I don’t think anyone wants Sarah Palin to write EOs…

  7. Paul Schulte

    Dredd – saying he did it first or they all did is less than I did, is not a good excuse. This is a teenagers constant plea. All my friends have x or are doing x, why can’t I?
    So stop doing it.

    1. Dredd – before I respond, I am going to need more than “So stop doing it.” Just what is it I am supposed to stop doing?

  8. hskiprob

    Dredd, Very observant. So is our esteemed leaders relying on unconstitutional executive orders, rulings and legislation to condone their continued criminal actions. So what’s your point?
    That you have no point until you have a case to cite.

  9. slohrss29

    In a nutshell, the EOs just undermine the intended operational model of our government.

    Learn in a nutshell:

    The first use of proclamations [EO] can be traced back to George Washington. In 1793, the Washington Administration was wrestling with the idea of issuing a proclamation declaring the United States’ neutral in the war between England and France. Given the option of calling Congress back into session or issuing a proclamation on his own accord, President Washington chose the latter. On April 22, 1793 Washington issued a proclamation which enjoined the citizens of the United States to “. . . avoid all acts and proceedings whatsoever, which may in any manner tend to contravene such disposition . . .” of “. . . a conduct friendly and impartial toward the belligerent powers . . . .” Moreover, he had “given instructions to those officers, to whom it belongs, to cause prosecutions to be instituted against all persons, who shall, within the cognizance of the courts of the United States, violate the law of nations, with respect to the powers at war, or any of them.” However, he found that enforcing his proclamation was difficult and, thus, decided to look to Congress for assistance. Congress responded by passing the Neutrality Act of 1794 which gave the Administration the power to prosecute those who violated Washington’s proclamation.”

    (my link upthread, quoting John Contrubis, “Congressional Research Service Report for Congress No. 95-722 A”).

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