Legal Commentary

The Imperial Presidency and Domestic Law

By Eric Posner

 In my previous two posts, I discussed the executive?s prerogatives with respect to foreign policy and military intervention?hot topics today. But until recently, the hot topic was the Obama administration?s aggressive domestic policy, which culminated in the Dodd-Frank Act and the health care law. Skeptics of the thesis of executive primacy could point to these two statutes as evidence that Congress is alive and kicking. It seems obvious that President Obama could not have reformed American financial regulation and health care law without the cooperation of Congress. So in what sense is the executive primary or ?imperial??

 The answer is that, for both statutes, (1) the Obama administration, not Congress, initiated the legislative process and set the contours of debate; (2) the Obama administration, not Congress, is the face of the laws and will be held responsible for their success or failure; and, most important, (3) the statutes delegated massive authority to the executive?hundreds of rule-making mandates?so that the vast majority of policymaking decisions will be made by executive branch officials over the coming years and decades.

 Add to this the Obama administration?s use of regulatory agencies to implement climate regulation, having failed to secure congressional support for a climate bill. Presidents always prefer congressional support if only for the political boost, but when they fail to obtain it, they can fall back on the immense regulatory powers they already enjoy. In this case, Obama can fall back on existing environmental statutes and his control of the EPA and other agencies that regulate industries that affect climate change?and obtain much but not all of what he wanted from Congress. Yet another example is Obama?s (and before him, Bush?s) reliance on existing regulatory authorities to resolve the financial crisis. The government poured hundreds of billions of dollars into the credit markets even before Congress signed a blank check for hundreds of billions of dollars more. The Dodd-Frank law shuffles around these authorities, and expands them at the margins, but does not fundamentally change them.

 The two statutes follow a pattern of congressional delegation reaching back more than a century, and which created the modern administrative state at the apex of which is the executive. What is most notable about them is not that they reflect a congressional resurgence (they don?t); it is that they decisively mark the recovery of the regulatory state after a three decade long ideological quasi-retreat. The debate about the size of the federal government will continue. But the debate about limited government is over. Both sides of the political spectrum have acquiesced in a powerful executive weakly constrained by Congress and the courts; the only live political question is what the executive should do with all that power. For more, see The Executive Unbound.

Full post as published by The Volokh Conspiracy on March 23, 2011 (boomark / email).