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07/27/2015

William Marshall: Evaluating the Obama Administration’s Commitment to Unilateral Executive-Branch Action
Michael Ramsey

William P. Marshall (University of North Carolina at Chapel Hill - School of Law) has posted Actually We Should Wait: Evaluating the Obama Administration’s Commitment to Unilateral Executive-Branch Action (2014 Utah Law Review 773 (2014)) on SSRN.  Here is the abstract:      

Although once committed to diminishing the expansion of presidential power, President Obama has become a proponent of energetic unilateral executive-branch action. Faced with a relentless and uncompromising opposition in Congress, the President has come to believe that it is only through the exercise of his unilateral powers that he will be able to accomplish his agenda and meet the promises that he made to the American people.

Some defend President Obama’s expansive use of presidential power because Congress has been so defiant. According to this view, the President should have the authority to aggressively use executive power when Congress does not act responsively or appropriately. This article contests that position. It agrees with the premise that increased polarization in American politics has made the work of the executive branch more difficult and that this Congress in particular has failed to act responsibly. It also agrees that presidents may no longer be able to expect that members of Congress will abandon their partisan interests in favor of the common good. It does not agree, however, that separation-of-powers constraints on the presidency should be adjusted to reflect this new political dynamic.

Part I of this article provides the necessary background by briefly describing the partisan political gridlock faced by President Obama and identifying some of the unilateral uses of presidential power employed by the Obama administration in its efforts to overcome or circumvent its political opponent's obduracy. Part II places the Obama administration's actions in context by discussing why presidential power had already become so expansive and why it continues to expand. Part III discusses the paradoxical role that congressional obstruction plays in relation to presidential power. Part IV identifies some of the concerns related to the centering of power in the presidency and questions whether, for whatever reasons, including congressional obstruction, presidential power should be expanded in a manner that accentuates those concerns. Weighing the concerns of government breakdown and harm to the national interest on one side versus aggrandized presidential power on the other, it contends that the constitutional answer to this question, with minimal exceptions, should be no.