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
hskiprob
Dredd, Do you think that the courts cannot overturn an executive or they don’t want to?
…
=================
They don’t like to but they can if it is unconstitutional.
There are cases where it has been done.
The first one by George Washington qualified, but no one sued.
It takes several things to go thru the process … 1) a seemingly unconstitutional EO, 2) someone figuring that out, 3) sue the bastid, 4) Supreme court majority agreeing.
All big steps.
Dredd, I would imagine a very costly venture as well.
hskiprob
“If one President is corrupt, doesn’t that allow me to be corrupt?” – President Barrack Obama
====================
Making up things is one thing, but putting quotes around a non-quote is falsehood.
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?
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?
Pete
This discussion is fascinating. But does Obama really keep count of EO’s?
…
==============
This fascinating discussion has links up-thread to the Federal Register and a subject matter index to EOs.
Learn.
Paul Schulte
Dredd – I think some Republicans have sued Obama over his EOs. They just did over his FOIAs. I think Obama and his administration is trying to stay out of court until they are out of office. All the bad stuff will happen on the next persons watch.
================
You think a lot of things.
Show me the EO cases (FOIA is off topic).
Or I must disregard your perception.
This discussion is fascinating. But does Obama really keep count of EO’s?
This would make a good conversation at his next golf outing.
I think he’s also going to run a stop sign during the Afghan troop withdrawal.
Here’s a video practice run.
Dredd – I think some Republicans have sued Obama over his EOs. They just did over his FOIAs. I think Obama and his administration is trying to stay out of court until they are out of office. All the bad stuff will happen on the next persons watch.
In a nutshell, the EOs just undermine the intended operational model of our government. But isn’t that what people do?? Make rules, and instantly start trying to find ways around them. Professor Turley had stated as much a while back. Following the intended process if the issue here. It is my thinking that one person isn’t supposed to have the ability to make a huge and enduring impact at one particular point in time. The model of our government should be just as important as the laws that come out of it.
Another viewpoint:
(John Contrubis, “Congressional Research Service Report for Congress No. 95-722 A”).
hskiprob
Dredd, Leave it to the attorneys. They are very good at consensus making. lol Why not focus on trying to nullify all the unconstitutional ones.
…
Basically, my understanding of the intention of the separation of powers between the Federal conclave; the District of Columbia and the 50 United States was for military purposes and operations.
======================
The framers lived when “the king can do no wrong” and when feudalism was the model for European structure.
Thus, they saw what did not work, and had a hypothesis as to why.
Power corrupts.
So they sought to limit the power of government by separating the power into three areas that had to work together.
Less power in any one place, they reasoned, would mean less corruption in any one place.
As for “trying to nullify all the unconstitutional ones [EOs]” the Marbury v Madison case of 1803 it was decided that the U.S. Supreme Court has final say as to what is, and what is not, constitutional.
As long as a president is giving orders in his own branch of government (e.g. THUH DECIDER TOWN), and as long as the Senate and House are issuing LOs (legislative Orders), the courts have understood they should be hands off (“non-justiciable).
So, go ahead sue the preznit … make my day. 😉
Dredd, Do you think that the courts cannot overturn an executive or they don’t want to? Obviously suing the Federal government today is like suing Caesar. We have seen the various judicial abrogations, so obviously they will do what is necessary to maintain control of their powers even if abandoning the Constitution is required. Such a system doesn’t bode well for the Citizens.
I think I’m still against them…. But to keep the playing field level…. He’s not the first….
“You have to look at what’s being done.” – JT
The number of EO’s is indeed irrelevant, whether they are low or high.
But, until there is a detailed discussion of each one, based on a valid and accepted yardstick that applies equally to each president, merely criticizing the use of statistics is also unavailing.
Does anyone know of a definitive method for evaluating each EO by some scale that has a consensus?
Willy nilly opinion is not a scholarly technique either.
Urging the politicians to be politically correct is a step in the proper direction, as it would also be (investigativelly correct) for anyone “look[ing] at what’s being done” … but what criteria governs the “what’s being done” analysis?
EO’s cover a diverse range of subjects that do not easily fit a simple scale of 1 to 10.
Perhaps a good start would be the subject matter index of the Federal Register (e.g. Obama, Bush II).
When the subjects match, reference could then be made to the constitution and relevant case law in an analysis, but that is also minimalist.
Where there are no matches by subject, then perhaps comparisons to that subject other presidents did EOs on would suffice.
One caution is that too many years apart between EOs would be risking comparing apples to oranges, because times change.
That is why I suggested comparing the subject matter index of Bush II with the Obama subject matter index.
Those two are close in terms of the sequence of presidential lineage.
It is not an easy matter to analyze.
Without bias showing through that is.
Dredd, Leave it to the attorneys. They are very good at consensus making. lol Why not focus on trying to nullify all the unconstitutional ones.
“In exercising this power [to dispose of and make all needed Rules and Regulations respecting the Territory or other Property belonging to the United States2(DC)], Congress is not subject to the same constitutional limitations, as when it is legislating for the United States3(50 States). [Hooven & Allison Co. vs Evatt, 324 U.S. 652 (1945)]”
Basically, my understanding of the intention of the separation of powers between the Federal conclave; the District of Columbia and the 50 United States was for military purposes and operations. Those Presidents who declare a State of Emergency, thus become military dictators as both Lincoln and FDR did.
Do all these executive orders even apply to the 50 States? I think the big problems is that the Feds have long merged the two jurisdictions, nullifying the Constitution and the rule of law as it has applied to the 50 States. Perhaps we have been in a prolonged State of Emergency and why we are in constant wars???
We all know it is merely a confiscatory scam by the ruling oligarchy but that debate seems to go on, ad nauseam.
hsk, Chicago pols are the NY Yankees of corruption.
“If one President is corrupt, doesn’t that allow me to be corrupt?” – President Barrack Obama
HSkiprob wrote “If one President is corrupt, doesn’t that allow me to be corrupt?” Barack Obama. I can find nothing to validate that quote.
leejcaroll – I think he was channeling Obama’s inner monologue. 🙂
LeeJ, I am really amazed. So when the next right wing nut president gets elected you will fully support all extra constitutional actions he takes? Perhaps you will support this, however I seriously doubt it. The Constitution does not give the President power to do anything he wants if the Congress does not first act. Plain and simple. The way to fix this problem is to vote for responsible people. Lately both the Rs and Ds have put the same people back in, the public votes them in, so stalemate we get. As citizens we have two choices in getting a different government, vote, or revolution. I hope one of these days the majority is sick and tired of the one party system we have had for the past 50+ years called DemoRepublicrats or republidemocans. Take your pick, the policies of each is the same. Money for big bankers and other rich people, crumbs for the rest.
Mea Cupla, I should have said “Democratic,” I was jumped on when I first came here. I was not aware that “Democrat” had specific PC usage. From my lesson I believe, but I’m really not certain, that it should be “Democratic legislators” not Democrat legislators. I was accused of being a Karl Rove lover. Chrissake people can be soooo wrong. But, you know me, I always want to go along to get along. So, here is my homage to all to Democratics!!
leej, Even Democrat legislators complain @ how aloof and condescending this president is. They had to eat his shit also. And now they’re paying for it. This presidency is imperial and it knows no party.
Funny how people against this president carp “the lawlessness” of this administration but ignore the fact that the repubs from the night of the first inauguration said we are just going to ignore how this government works, how it is the people who speak with their votes, how the people have said by a majority of electoral college and popular numbers (more then the numbers Bush got who then had the GOP continually touting his “mandate” from the people.) how they have done nothing for the country only for their party and obstructed, obstructed, obstructed no matter who was hurt, like the unemployed the working poor, the disabled, seniors, etc.
President Obama is doing the work that the congress is supposed to be doing but has been hamstrung by the repubs refusing to do their job.
When will the professor and others who continually rail against this president start talking and writing about the fact that the president has been obstructed by the republicans every step of the way?
leejcaroll – have you forgotten your civics classes? This is a check-and-balances government. Obama has refused to work with the Republicans. Even liberal pundits have admitted that. He chastised the Supreme Court in his State of the Union.
Every year the House has voted out a budget bill (as required) and every year the Senate has voted it down. Every year Obama has floated his budget (late every year) and both the House and the Senate have turned it down.
If Obama thinks things were tough before, wait until 2015.
Professor Turley,
I understand your concern for truth and protection of all constitutional rights and that those laws and rights within the constitution are being ignored or twisted. I applaud your tenacious effort to bring our president under scrutiny for his “unprecedented level of circumvention.”
Sometimes, those who claim to work for the sake of justice, become skewed when their party is guilty, i.e. Brennan Center of Justice.
May we all strive for discernment and wisdom to protect the Republic of the United States of America.
It is the quality, not the quantity of the EO that counts. But I am not surprised that the Brennan Center is taking a dive for Obama. It starts with them quoting Andrew Napolitano whereas most attorneys at least would give him is former title as well Judge Andrew Napolitano. Napolitano was a judge of the New Jersey Superior Court, so he has some feel for the actual law, not the law theory coming out of think tank centers like the Brennan Center.
The “my friends are all doing it so why can’t I?” is an excuse that teenagers make all the time. Although I have to admit Obama does act like a petulant teen on occasion.
Since this administration likes to think of itself as a law unto its own, I can see why he is doing it. But the lawlessness of this administration puts knots in my gut every time I think about it.
Oh, Turley you are just a Fox News guy now. Of course you’re going to say this. I’m just saying what many here think but don’t say. I agree w/ you but wanted to give voice to those too timid to say it.
The next executive order should be that there will be no future executive orders.
Congress has to get back to work.