President Obama sees executive action as the primary way to build his legacy, but years from now, he could regret his penchant for going it alone.
By so frequently testing the limits of his executive authority, Obama has set a precedent for future White House occupants to bypass Congress with even more regularity, say legal scholars and political insiders.
A President Hillary Clinton or Jeb Bush, for example, could point to Obama as the model for interpreting “prosecutorial discretion,” taking a similar position on whether their administration would enforce laws conflicting with their political aspirations.
Obama used executive action to spare up to 5 million illegal immigrants from deportation, normalize relations with Cuba, heighten standards for carbon emissions and delay politically-troubling components of the signature health law bearing his name.
More uncomfortable for the White House is whether Obama’s actions have paved the path for a future president to employ a similar rationale for actions not supported by Democrats, such as undoing Wall Street reform, environmental regulations or even rewriting the tax code.
“One of the things I find depressing is how much of a free ride Obama has gotten,” said David Rivkin, a constitutional litigator who served in the White House counsel’s office in the Reagan and George H.W. Bush administrations.
“The vast majority of what Obama has done has been [legally] questionable,” Rivkin added. “We’re talking about a long-term, adverse impact to what he is doing. Rewriting laws should be totally off the table. The temptation for the next occupant of the White House to follow suit would be that much stronger.”
David Rivkin
Obama arguably would have been his own harshest critic at one point. As a presidential candidate, he eviscerated President George W. Bush’s view of the legal parameters of his executive authority.
The White House is now walking a fine legal line in defending a barrage of executive moves on big-ticket items.
Obama’s supporters argue he is not rewriting laws because his executive action could be undone by any future administration. Yet, they are almost daring Obama’s successors to scrap his initiatives, saying any Republican president would pay a heavy political price for doing so.
“I think any future administration that tried to punish people for doing the right thing, I think, would not have the support of the American people,” Obama explained earlier this month, when questioned about a future president rolling back his immigration action.
In essence, the White House is banking that policy will trump process — and that Obama’s actions will seem like common practice by the time he leaves office.
Obama’s aides point to an uptick in his approval ratings of late as proof that his approach is working. But such thinking, analysts warned, can provide only short-term comfort to Obama.
“No president cares much about the precedent he is setting for future presidents,” said Larry Sabato, director of the University of Virginia Center of Politics. “The odds are, he won’t have to worry about this right now. It’s the next president’s problem. He’s just trying to maximize his remaining time in office.”
Obama’s defenders counter that his actions aren’t unprecedented, pointing to a similar number of executive orders and unilateral moves by previous presidents. However, the scope of Obama’s actions, analysts say, is more wide-ranging than his predecessors’.
Obama started out small, acting on his own to deliver a handful of economic prescriptions. He then went a bit further, protecting Dream Act-eligible immigrants from deportation and delaying a handful of unpopular Obamacare provisions.
But 2014, particularly after the midterms, ushered in a new era for Obama. His move on immigration amounted to the most sweeping unilateral action on domestic policy in decades, say defenders and detractors alike.
And even some Obama allies have reservations about the unintended consequences of the president’s constitutionally hazy actions.
“Do I think the president’s hand was forced by Republicans? Yes, I do,” said a former senior official in the Clinton administration. “Do I also think we may have opened up the floodgates on executive action in a possibly disastrous way? Absolutely, yes.”
