“WHEN Congress refuses to act…I have an obligation as president to do what I can without them,” Barack Obama said last year. It is a duty he has discharged with vigour and creativity. Since the Republicans won control of the House of Representatives in 2010, Mr Obama has found many ways to circumvent their desires—on immigration, climate change and appointments—often testing the limits of his authority under the constitution in the process. With control of government still divided, and with time running out for the president to cement his legacy, the next few years will see much more of it.
Already this year Mr Obama has issued a series of directives trying to strengthen the system of background checks on those who buy guns. After Congress blocked the administration’s attempt to close loopholes on sales online and at gun shows, he has instructed all federal law-enforcement agencies to co-ordinate more closely to improve the database that the checks rely on. The Department of Justice is offering $20m in grants to encourage states to submit more information to the database. Mr Obama has also ordered the Consumer Product Safety Commission to examine the effectiveness of gun locks and safes, and the Centres for Disease Control and Prevention, a public-health agency, to start looking into the causes of gun violence.
These are small steps. But in other areas the law gives Mr Obama more leeway. The Clean Air Act, for example, allows the Environmental Protection Agency (EPA) to regulate emissions of carbon dioxide and other greenhouse gases from power stations. The EPA has drafted regulations restricting emissions from new plants and will begin work shortly on existing ones, too. Another decree from Mr Obama’s regulators is cutting emissions by sharply raising fuel-efficiency standards for cars and trucks. Taken together, such measures could have a similar impact to the climate-change bills that Congress has balked at in recent years. Similarly, last year Mr Obama instructed authorities to stop deporting “dreamers” (illegal immigrants brought to America as children, with otherwise blameless records) and to issue them with work permits, even though bills with a similar effect had foundered in Congress.
Sowing another’s harvest
John Podesta, the White House chief-of-staff at a time when Bill Clinton was grappling with divided government, predicts that this administration will find ever more creative ways to circumvent Congress over the next few years. “Once you start doing it, you like it,” he says.
Another attempt to evade Congress’s strictures earned Mr Obama a rebuke from the courts in January. When Congress is not in session, the president has the power to make appointments that would normally require the Senate’s approval. So when Republican objections left his nominees for various government posts in limbo, he pushed them through via “recess appointments”, even though the Senate was not technically in recess. The administration argued that the minute-long sessions the Senate was holding every few days precisely to prevent any such appointments did not constitute genuine parliamentary business. A lower court disagreed; the case is now before the Supreme Court.
Mr Obama has occasionally resorted to a tactic favoured by his predecessor, George W. Bush, that enraged the left and earned criticism from Mr Obama himself when he was running for president: the signing statement, a sort of declaration of principles issued when a president signs a bill into law. Although these have been around since the early 19th century, Mr Bush used them like a line-item veto, identifying portions of laws he did not intend to enforce. Mr Obama has done the same, albeit far less often, arguing that Congress has no right to tell him what to do with the prisoners America is holding at Guantánamo Bay in Cuba, for instance.
Mr Obama’s administration has also mimicked Mr Bush’s refusal to hand over documents to congressional investigators, on the grounds that the internal deliberations of the executive branch are privileged. It is thought to have drafted at least one secret Bush-like memo, awarding the president sweeping powers in the war on terror. Eric Holder, the attorney-general, has asserted that under certain circumstances the government, without any sort of judicial process, has the right to assassinate American citizens plotting attacks against their own country, even though Mr Obama as a candidate was unwilling to countenance detaining or wiretapping such people without a judge’s approval.
In fact, argues Mark Rozell of George Mason University, the difference between Mr Obama’s view of the president’s powers and Mr Bush’s is largely rhetorical. Mr Bush, along with his vice president, Dick Cheney, made explicit their desire to restore to the presidency the clout they felt it had lost in the 1970s after the Watergate scandal, Mr Obama meanwhile speaks of respect for constitutional niceties.
Larry Tribe, a former professor of Mr Obama’s and subsequent legal adviser, considers this unfair. The president did push Congress, he notes, to give defendants more rights in the military tribunals Mr Bush originally set up by executive order, and has continued to enforce laws he finds objectionable, such as the Defence of Marriage Act, which bars the federal government from recognising gay marriage. Increasingly, however, the exigencies of office seem to be trumping the legal qualms of the campaign trail—something Mr Obama’s supporters will regret when a future Republican president perfects the dodges he is pioneering.