On the latest stop on his extended farewell tour, President Obama sat down for an interview with NPR. Morning Edition’s host Steve Inskeep asked the President about his advice to President-Elect Trump with respect to executive power. His reply: do as I say, not as I do.
Should President-elect Trump, once he’s inaugurated, use his executive powers in the same way that you have?
I think that he is entirely within his lawful power to do so. Keep in mind though that my strong preference has always been to legislate when I can get legislation done. In my first two years, I wasn’t relying on executive powers, because I had big majorities in the Congress and we were able to get bills done, get bills passed. And even after we lost the majorities in Congress, I bent over backwards consistently to try to find compromise and a legislative solution to some of the big problems that we’ve got — a classic example being immigration reform, where I held off for years in taking some of the executive actions that I ultimately took in pursuit of a bipartisan solution — one that, by the way, did pass through the Senate on a bipartisan basis with our help.
I was very proud of that. I went out of my way to make sure our help was behind the scenes so that Republicans didn’t feel as if it was going to hurt them politically. At the end of the day, John Boehner and the House Republicans couldn’t pull the trigger on getting it done. And it was only then, after we had exhausted efforts for bipartisan reform that we took some additional steps on immigration executive actions. So my suggestion to the president-elect is, you know, going through the legislative process is always better, in part because it’s harder to undo.
And that doesn’t mean, though, that he is not going to come in and look at the various agencies and see the rules we’ve passed and if he wants to reverse some of those rules, that’s part of the democratic process. That’s, you know, why I tell people to vote because it turns out elections mean something.
This recounting of history is very selective. To the President’s account, he did everyone a favor by not taking any executive action until the Gang of Eight bill was dead. He failed to mention that during this time, he repeatedly insisted that taking executive action (like DAPA) would have been illegal. Only after congressional defeat did his administration discover the relevant power, that had been buried in the interstices of the U.S. Code and the Federal Register for decades. Oh, and leading that expedition was President Obama himself, who kept insisting his government go farther to protect more aliens. Stay tuned to my forthcoming article, Presidential Maladministration, which walks through this process in detail.
In an earlier time, more Democratic time, President Obama articulated a different perspective on executive power. As I recount in Unraveled:
During the final six years of his administration, President Obama was largely unable to advance his agenda through the legislative process. Faced with Republican opposition at every step, Obama increasingly turned to executive power to take action where Congress would not. By 2011, the mantra of his presidency became “We can’t wait.” Charlie Savage reported that the president coined this slogan at a meeting to “more aggressively use executive power to govern in the face of Congressional obstructionism.” 1 When Congress would not legislate to the president’s satisfaction, he would act alone. In a White House blog post fittingly titled “We Can’t Wait,” the administration listed all of the president’s executive actions, stressing that he “is not letting congressional gridlock slow our economic growth.” 2 By my count, Obama has repeated this phrase at least a dozen times to justify taking executive action where Congress would not pass the bill he wanted. 3 If “We Can’t Wait” was President Obama’s mantra, the “Pen and Phone” became his method. In 2014 a cabinet meeting he explained, “We’re not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help they need. I’ve got a pen and I’ve got a phone.” 4 Specifically, he said, “I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward” to “advance a mission that … unifies all Americans.” 5 To accomplish this mission, the president insisted that his cabinet “use all the tools available to us, not just legislation.” The president’s chief of staff John Podesta put it bluntly: “The upshot: Congressional gridlock does not mean the federal government stands still.” 6
Or, simply watch this SNL clip: