He wields the pen, but not radically. Photographer: Yuri Gripas/Pool via Bloomberg
He wields the pen, but not radically. Photographer: Yuri Gripas/Pool via Bloomberg

It’s worth going a bit deeper into the question of executive action, because if we take the latest round of radical attacks on Barack Obama seriously (and we shouldn’t), we would recognize it as an attack on the structure of the Constitution itself.

First things first. I emphasized in a post yesterday that Barack Obama has used executive orders more rarely than past presidents. That’s correct -- but as presidency scholar Andrew Rudalevige points out, formal executive orders are only one kind of unilateral action presidents may take, and the raw numbers of executive orders really don’t prove much. That’s important to note.

It doesn’t save the phony case against Obama, which falsely implies or even explicitly claims that he’s somehow radically different than his predecessors on executive action. But it is possible that Obama has (or will) break new ground, even if he’s not always fully exploiting all the old ground that’s out there.

Let me back up a bit … the proper starting point here is something that the late political scientist Richard Neustadt explained more than 60 years ago:

The Constitutional Convention of 1787 is supposed to have created a government of "separated powers." It did nothing of the sort. Rather, it created a government of separated institutions sharing powers" (his emphasis).

What does that mean? It’s not just that the president has a formal role in the legislative process thanks to his veto. It means that Congress does things that look an awful lot like executing the laws (think oversight, and the Senate’s role in the nomination process) and even in some cases judging; the courts do things that look an awful lot like making and executing the laws; and, yes, the executive branch does things that look an awful lot like legislating and judging. In other words, separated institutions -- president, legislature, courts -- sharing the powers of legislating, executing the laws, and judging.

Those aren’t newfangled modern ideas; they’re really inherent in the way the Constitution is written, and they took root early in the republic as politicians learned to work according to the rule book that James Madison and others gave them. “Separation of powers” has always been just a very misleading description of how the U.S. political system is designed.

Of course, this doesn’t mean that presidents can do whatever they want. The text of actual laws constrain them, as do all sorts of political and institutional factors -- although both of those factors also open possibilities for executive action, since most laws leave plenty of room for interpretation, and Congress is often very happy to let the president do what he wants. Also constraining the president are precedents and rulings about executive action. As Norm Ornstein explains in a very nice piece, this sort of action is “very limited in its scope and duration.”

And at least so far, nothing that Barack Obama has done even hints at significantly upsetting the normal balance. Which doesn’t mean that he’s colored inside the lines every time; if he hasn’t, however, that’s what the courts are for (although Ornstein wonders if conservative judges will just wind up acting as partisans).

Still, as Ornstein says, overall “Obama is well situated in historical precedent to use his executive power.” Basically, it’s pretty simple. In broad outline, Obama can use executive orders and other executive action because presidents have always had the ability to do so. Claims to the contrary are either ignorant of the Constitution as it is written and as it’s been lived for over two centuries, or (in the case of those who clearly know better) just plain dishonest. But any particular instance certainly can be challenged, and may or may not turn out to be legitimate. Indeed: It’s very healthy for the system for Congress, the courts and even the out-party in general to challenge specific assertions of presidential authority.

Just don’t try to tell us that executive orders, and presidential unilateral action in general, is somehow something invented or radically increased by Barack Obama.

To contact the writer of this article: Jonathan Bernstein at jbernstein62@bloomberg.net.

To contact the editor responsible for this article: Tobin Harshaw at tharshaw@bloomberg.net.