Vol. 28 No. 7 (December 2018) pp. 94-96PRESIDENT OBAMA: CONSTITUTIONAL ASPIRATIONS AND EXECUTIVE ACTIONS, by Louis Fisher. Kansas: University Press of Kansas, 2018. 296pp. Paper $24.95. ISBN: 978-0-7006-2685-4. ISBN: 0700626859
Reviewed by Kimberley Fletcher, Department of Political Science, San Diego State University. Email: kfletcher@sdsu.edu.
PRESIDENT OBAMA: CONSTITUTIONAL ASPIRATIONS AND EXECUTIVE ACTIONS, by Louis Fisher is a well written account of basic constitutional principles, including separation of powers, checks and balances, and formulating public policy through presidential decree vis-à-vis legislative enactment. Fisher proficiently intertwines a historical, legal and political evaluation to demonstrate how and why unilateral attempts by President Barack Obama to shape national policy without Congress have done substantial harm to the nation and our constitutional system. Fisher employs a rather straightforward theory of presidential power and authority in his analysis of various policy initiatives advanced by the Obama administration. He successfully weaves his theory into an expert retelling of the institutional power plays between the executive, and legislature, illustrating the main goals of the book: how we understand change, how it persists, and how this change is instituted over developmental time. Fisher also examines the integral role of the courts in this process. At times, the courts have championed change with a decision like OBERGEFELL V. HODGES (2015). But Fisher finds the courts are also an inadequate response to executive overreach, as they have also enabled continued claims of executive power.
Fisher demonstrates how the basic system of checks and balances has been substantively changed over time by Supreme Court decisions (beginning with the Court’s 1936 decision in UNITED STATES V. CURTISS-WRIGHT EXPORT CO., which established the sole organ doctrine), military initiatives (including President Truman and the Korean War, President Clinton and hostilities in Haiti and Bosnia, President Obama and military action in Libya, and drone warfare), scholarship (idealizing a pro-presidential position beginning with World War II and on), and by presidents prone to exert unilateral power. This book addresses the unceasing use of unilateral actions by presidents of both parties, including President Donald J. Trump’s recent endorsement of having even more power lodged with the executive branch.
Fisher’s broad framework successfully evaluates Obama’s two terms against the backdrop of prior executives, with attention given to the presidencies of Truman to the present. Fisher begins by evaluating the presidential power that Obama inherited. These powers date back to the basic principles set forth by the Framers but have been considerably altered over developmental time. Fisher then expertly demonstrates that by understanding how a campaign promise to uphold the Constitution can be broken upon entering office we can better grasp the practical realities of responding to congressional gridlock and threats to our national security.
In a detailed account of the Obama administration’s expansive exercise of Article II powers, Fisher illustrates that the political realities of a presidential candidate and the confines of the office resulted in President Obama, an authority on the Constitution, pursuing his agenda ever more aggressively through presidential action. Policy areas reviewed include climate change, the auto industry bail-out, and financial reform. Even though Obama had vowed to revere the separation of powers and the confines of the executive’s constitutional authority, Fisher illustrates that Obama was not unlike other modern presidents in his actions. When Obama’s ambitious policies failed, Fisher draws attention to the politics and the apprehensions that can [*95] propel presidential overreach. In this regard, Fisher speaks to the effect of executive prerogatives on bipartisan backing, public perception, and the efficiency of government.
Fisher’s attention to Obama’s proclivities towards unilateral decision-making best describes the incongruities that existed between Obama’s deference to constitutional limitations on executive power and of the lawmaking duties of Congress, and the administration’s resolve to resort to unilaterally executing policy initiatives without congressional consent. To illustrate this point one of the areas Fisher examines is Obama’s “conflicting messages” (p.123) and his unilateral actions in the area of immigration policy. Obama promoted “bipartisan cooperation” and welcomed the opportunity to work with Congress to achieve “bipartisan action on immigration reform” (p.127), but the constitutional narrative shifted as Obama “began to read his presidential powers more expansively” (p.130) in the fall of 2011. Obama was ready to act “with or without Congress” and by 2012, under Obama’s directive, the Department of Homeland Security was directed not to deport “Dreamers” (undocumented aliens who came to America as children) under the DACA (Deferred Action for Childhood Arrivals) policy. While this action was “temporary” Obama encouraged “Congress to pass comprehensive immigration reform” (p.130) but countered that he would act unilaterally if legislation did not come. In 2014 Obama “announced a second unilateral action,” this time shielding 4 million undocumented aliens (p.135) known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). While this program was unsuccessful before the courts, Obama quickly noted that the decision had no impact on his DACA policy. Consequently, as Fisher notes, President Trump took a very different position on both policies when he took office. As such, DACA once again was left to Congress and DAPA was rescinded by Homeland Security Secretary John F. Kelly.
Of the many policy initiatives evaluated by Fisher, his reflection on President Obama’s perpetuation and use of many of the Bush administration’s policies in the continued war against terrorism is the most telling. It is however, only the most recent concern in a long line of examples where presidents have repeated this imbalance of power.
Fisher again demonstrates the tension between Obama’s constitutional desires as a presidential candidate – to break from George W. Bush’s claim to “inherent” presidential powers – and the demands of the office. By dissecting and criticizing the use of executive power in Obama’s two terms Fisher persuasively illustrates how the courts are an inadequate source for reclaiming the shared power of war making. Fisher offers a good mix of presidential and legislative politics and infuses this analysis with rich case law. In fact, Fisher’s analysis of the courts’ role serves to demonstrate how the courts have enabled assertions of discretionary executive authority even when there are limited or nonexistent constitutional grounds for this claim. Judicial interpretations starting in 1936, with the Court’s institution of the sole organ doctrine, and “carrying forward to today, … has sanctioned independent presidential power in external affairs” (p.14). Obama ultimately demonstrates how presidents have acted outside the confines of the original understanding of the Constitution and our most current administration, Trump, follows this same path.
Unfortunately, today’s president is presented with the dilemma of being given the uncertain task of handling our nation’s war powers because of the dangers posed by other regimes. However, without the effectiveness of rigorous decision-making involving interbranch debate these actions are more often than not unconstitutional. It has also become custom that the executive branch is to blame if the nation comes under attack. Consequently, responsibility is tantamount with power and authority, which further obscures clear delineating which of the two branches has the lion’s share of power in this area. But administrations, at times with Congress and the courts in tow, have done irreparable damage to our political system in an attempt to unilaterally construct national security policies that are profoundly flawed. Even though Congress has [*96] the constitutional power to declare war, it does not serve as a constraint upon presidential behavior in foreign policy making. To thwart this continued imbalance of power, Fisher calls for legislative action: the House must “pass a resolution stating that any President who seeks authority for a military initiative not from Congress but from the U.N. Security Council or NATO allies is committing an impeachable act” and a “Senate resolution to that effect would underscore a basic constitutional principle” (p. 260). Furthermore, Fisher counsels that even when executives receive “a Security Council Resolution for a military operation” (p.260) that action does not comply with the Constitution as Article I authority cannot be transferred. Interestingly, Fisher notes that for a president to concede that there is a constitutional requirement to confer with Congress or that authorization is obligatory would be to admit that the executive’s authority to determine the nation’s domestic and foreign relations is limited.
This book is a judicious account of Obama’s executive performance and legacy and it illustrates just how worn constitutional principles have become. It is this developmental narrative that has paved the way for successive presidencies to continue to claim unilateral executive prerogatives. As a presidential candidate, Obama vowed to tackle constitutional issues very differently than his predecessor. But Fisher illustrates that nothing much changed when Obama’s presidency is evaluated. This precedent of unilateral presidential action is a reminder of the dire consequences of inflating executive power.
Rife with constitutional history highlighting the original design and the adoration of executive power by scholars and judicial sanctioning of independent executive vigor over developmental time, to scrutinizing major presidential war decisions, this book is a significant new addition to constitutional theory. It adds to the continued debate on unilateral presidential authority. This book is a great contribution to any class focusing on individual presidencies, constitutional change over developmental time, presidential politics, balance of power, domestic and foreign affairs, and campaign rhetoric and presidential action, not to mention American institutions.
CASES:
OBERGEFELL V. HODGES, 576 U.S. ____ (2015).
UNITED STATES V. CURTISS-WRIGHT EXPORT CO., 299 U.S. 304 (1936).
© Copyright 2018 by the author, Kimberley Fletcher.
