Scholars and pundits have usually depicted Barack Obama as a prisoner of partisan rancor in Congress, which has been especially fierce on the Republican side of the aisle. We argue, to the contrary, that he has actively – if sometimes reluctantly – embraced the role of party leader, even in the management of the bureaucracy, the arena in which the modern presidency’s claim to transcend partisanship was nurtured. The Administration’s public celebration of unilateralism – typified by the “We Can’t Wait” initiative – is emblematic of a far-reaching development within the presidency and American politics: the rise of an executive centered party-system, which relies on presidential candidates and presidents to pronounce party doctrine, raise campaign funds, campaign on behalf of their partisan brethren, mobilize grass roots support and advance party programs. Although this development poses hard challenges to collective responsibility and the rule of law that undergirds it, Obama’s innovative administrative tactics may be the harbinger of a new paradigm that extols unilateral presidential policymaking as a habitual solution to partisan polarization.
About the authors
Kenneth Lowande is a PhD student in the Department of Politics at the University of Virginia.
Sidney M. Milkis is the White Burkett Miller Professor in the Department of Politics and Faculty Associate in the Miller Center at the University of Virginia.
For a more systematic development of this argument, see Milkis, Rhodes, and Charnock (2013).
Farris, Nathan, and Wright (2004) note that George W. Bush’s executive action in support of his “faith-based initiative” pushed administrative politics into new areas. When Congress failed to pass legislation to establish this program, President Bush made his unilateral pursuit of a comprehensive policy that would significantly affect the relationship between Church and State a major theme of his re-election campaign. “Congress wouldn’t act,” he told a group of faith-based leaders in Los Angeles on March 3 2004, “so I signed an executive order – that means I did it on my own” (cited in Ibid, 4). Although President Obama has recast the administrative presidency in his own image, making unprecedented use of informal measures and elaborating on the imperative of acting when Congress would not, the Bush presidency pioneered important precedents that anticipated, and to a point inspired, the current administration’s strategy.
For example, during the first 5 years of his presidency, George W. Bush issued 79 memos and 208 executive orders; during his first 5 years, Obama issued 162 memos and 171 executive orders (Tabulated using the digitized Federal Register:www.federalregister.gov).
To the extent Energy and Climate change were discussed in Congress, it was intentionally couched in terms of economic development. See “Growing US Trade in Green Technology,” Hearing, Subcommittee on Commerce, Trade and Consumer Protection (October 7, 2009) and “Competitiveness and Climate Policy: Avoiding Leakage of Jobs and Emissions” (March 18, 2009).
“The Energy Independence and Security Act of 2007,” Federal Register 74, no. 17, (28 Jan. 2009).
“Appliance Efficiency Standards,” Federal Register 74, no. 25 (5 Feb. 2009).
“A Comprehensive Federal Strategy on Carbon Capture and Storage,” Federal Register 75, no. 24 (5 Feb. 2010). “Blue Ribbon Commission on America’s Nuclear Future,” Federal Register 75, no. 22 (3 Feb. 2010).
“[W]aste management needs have had to compete for limited discretionary funds with other DOE priorities in the appropriations process”(Carnesale 2012). “Report to the Secretary of Energy,” Blue Ribbon Commission on America’s Future (January 26, 2012).
“Mexico City Policy and Assistance for Voluntary Population Planning,” Federal Register 74, no. 17 (28 Jan. 2009).
“Memorandum on Establishing a Working Group on the Intersection of HIV/AIDS, Violence Against Women and Girls, and Gender-Related Health Disparities,” Government Printing Office (30 Mar. 2012).
“Memorandum Establishing Policies for Addressing Domestic Violence in the Federal Workforce,” Government Printing Office (18 Apr. 2012).
DeParle cited in Savage (2012).
“American Jobs Act of 2011,” S.1549, 112th Congress (introduced September 14, 2011).
The first was taken March 3, 2012 and was negotiated with help of the Veterans Affairs administration. The second was taken April 27, 2012 via executive order (13,607), and coordinated efforts between the VA, the Department of Defense, and the Justice Department.
The Environmental Protection Agency and the Department of Transportation formally unveiled the Administration’s proposal to set stronger fuel economy and greenhouse gas pollution standards for Model Year 2017–2025 passenger cars and light trucks on November 16, 2011, http://www.nhtsa.gov/About+NHTSA/Press+Releases/2011/We+Can't+Wait:+Obama+Administration +Proposes+Historic+Fuel+Economy+Standards+to+Reduce+Dependence+on+Oil,+Save+Cons umers+Money+at+the+Pump.
“We Can’t Wait: Obama Administration Unveils Blueprint for a “Privacy Bill of Rights” to Protect Consumers Online,” The White House, Office of the Press Secretary (February 23, 2012).
The new conditions a State has to put in place to be relieved of the NCLB mandates are: States must adopt the common academic standards advocated by the Department of Education or work with their state higher education system to devise standards that are “college and career ready;” they must develop a new accountability system based on student progress, as well as a new teacher model that includes student performance as one measurement; they must intervene in the poorest 5% of schools and in most cases implement one of the turnaround strategies prescribed by the Education Department; in an additional 10% of schools having low graduation rates, big achievement gaps or low performance in student subgroups, districts must develop strategies for helping students with the greatest need (Smith 2012). On the Obama administration’s use of conditional waivers, which examines this practice form a broad historical and constitutional perspective, see Derthick (2013).
The fight over Common Core did not break down strictly according to partisan lines. Some progressive groups, including teachers unions, bristled at the emphasis on testing and the role of the Gates Foundation, which has funded the development and promotion of standards (Layton 2014).
Duncan cited in Smith (2012).
In early October 2012, the administration announced that two nationally and regionally significant transit projects in Minneapolis, Minnesota and Cleveland, Ohio that would be expedited via presidential action. http://www.whitehouse.gov/the-press-office/2012/10/01/we-can-t-wait-obama-administration-announces-transit-projects-minnesota
There were 11 actions that mentioned individual states, with 44 total individual mentions. Only two of those actions did not affect swing states. Of those 44 mentions, 12 were swing states. Of the conventional list of swing states — Colorado, Florida, Iowa, Nevada, New Hampshire, North Carolina, Ohio, Virginia, and Wisconsin—only Iowa, New Hampshire and Wisconsin were not the subject of some publicized action.
From June to October 2012, the administration used the expedited review processes outlined in Executive Order 13604 to approve projects in 12 states. The NCLB waivers were granted February 9, 2012. A $45 million manufacturing pilot program in Virginia was announced March 9, 2012.
The Obama Administration’s constitutional position on DOMA was vindicated when the Supreme Court declared it’s key provision – Section 3 – unconstitutional. See United States v. Windsor, 570 US __(2013) (Docket No. 12-307).
Munoz’s recalcitrance was especially notable – and frustrating – to Dreamers, as she formerly had served as the Senior Vice President for the Office of Research, Advocacy and Legislation at the National Council of La Raza, an advocacy group for Hispanic Americans.
“Memorandum: Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” Janet Napolitano, Department of Homeland Security (June 15, 2012). Secretary Napolitano’s memo was not created out of whole cloth. It was contemplated a year earlier in a memo issued by ICE Director, John Morton, an initiative which also was influenced by the intensive efforts of immigration advocates. Morton’s memo set out 19 factors that ICE officers should consider in determining whether to exercise prosecutorial discretion. But it did not require ICE field officers to exercise discretion in individual cases, and therefore left open the possibility that many individuals who were low enforcement priorities still faced the threat of deportation (Gilbert 2013, p. 274).
Source: Latino Decisions/America’s Voice (June 2013).
Soon after the election, the Senate passed a comprehensive bill that had strong bipartisan support – the final vote was 68-32 in favor. The Republican-controlled House has not been so moved, but there were signs by the beginning of 2014 that it was prepared to enact legislation that would address the most pressing deportation issues. The pending 2014 Midterm elections, however, made passage of immigration reform very uncertain (Lowery 2014).
In this sense, Obama’s administrative strategy parallels his innovative political organization, which was dedicated to linking him directly with potential supporters. He and his allies built an information-age grassroots organization that was critical not only to his two presidential campaigns but also to the enactment and implementation of Obama’s signature legislative achievement, the Patient Protection and Affordable Care Act of 2010. Born during the 2008 campaign as “Organizing for Obama,” this mass mobilization effort was inserted into the Democratic National Committee as “Organizing for America” during Obama’s first term in the White House; and after 2012 it was spun off as a nonprofit social-welfare entity called “Organizing for Action.” Obama promised his followers that removing his organization from the Democratic National Committee would strengthen its potential as a grass roots organization. Such a move also appeared to further embellish an executive-centered Democratic Party (Milkis, Rhodes, and Charnock 2012). Significantly, just as Obama’s attentions shifted to executive action in the Fall of 2011, so OFA combined its advocacy of the president’s legislative program with careful attention to administrative politics, touting the president’s We Can’t Wait campaign and his use of the presidential pen to advance climate change and immigration. In 2014, OFA was enlisted to help the Administration correct its troubled rollout of “Obamacare” by encouraging the uninsured to enroll in one of the government’s sponsored plans.
Cited in Goldstein and Eilperin 2013.
Foster cited in Ibid.
Quoted in Klaidman and Romano 2012. Romney, in fact, did pledge to repeal Obamacare on his first day in office, albeit by issuing waivers to all 50 States exempting them from the law’s requirements (Somashekhar 2012).
In announcing the new transition policy, the Department of Health and Human Services said it had been devised “in close consultation with members of Congress,” and it gave credit to a number of Democrats in competitive races, including Senators Mary L. Landrieu of Louisiana, Jeanne Shaheen of New Hampshire and Mark Udall of Colorado (http://www.cms.gov/Newsroom/MediaReleaseDatabase/Fact-sheets/2014-Fact-sheets-items/2014-03-05-2.html).
“Power Sector Carbon Pollution Standards,” Federal Register 78, no. 126 (1 Jul. 2013); “The President’s Climate Action Plan,” Executive Office of the President (June, 2013).
“Saving Coal Jobs Act of 2013,” S. 1514, 113th Congress, 1st Session, introduced September 17th, 2013.
A Op-Ed by Senator Edward Markey (D-MA) wrote that the need for such regulations was as definitive as the science behind climate change. Markey Edward, “An ‘Unequivocal’ Need to Limit Power Plants’ Carbon Emissions,” The Hill October 22, 2013.
“Discussion Draft,” H.R. _____, 113th Congress, 1st Session, circulated October 28th, 2013. H.R.3826 – Electricity Security and Affordability Act, March 6, 2014: http://beta.congress.gov/bill/113th-congress/house-bill/3826. The Supreme Court agreed to hear a major case challenging the power plant rule, albeit on narrow ground that did not appear to threaten the right of the EPA to regulate greenhouse gases (Liptak 2013).
Administrative Conference of the United States(ACUS). 2013. “Length of Rule Reviews by the Office of Information and Regulatory Affairs.” December 2.Search in Google Scholar
Baker, Peter. 2014. “In the State of the Union Address, Obama Vows to Act Alone on the Economy.” New York Times, January 28. http://www.nytimes.com/2014/01/29/us/politics/obama-state-of-the-union.html.Search in Google Scholar
Carnesale, Albert. 2012. “Recommendations by the Blue Ribbon Commission on America’s Nuclear Future: A Plan for Managing Spent Nuclear Fuel and High-Level Nuclear Waste.” The Bridge 42 (2) (Summer): 15–22.Search in Google Scholar
Coglianese, Cary. 2010. “Presidential Control of Administrative Agencies: A Debate over Law or Politics?” Journal of Constitutional Law 12: 637–649.Search in Google Scholar
Crouch, Jeffrey, Mark J. Rozzell, and Mitchell A. Sollenberger. 2013. “President Obama’s Signing Statements and the Expansion of Executive Power.” Presidential Studies Quarterly 43 (4): 883–899.10.1111/psq.12071Search in Google Scholar
Derthick, Martha. 2013. “On the Mutability of Laws,” paper prepared for a project on “Madisonian Thought in Contemporary Public Policy.” co-sponsored by the Montpelier Foundation and the Brookings Institution.Search in Google Scholar
Eilperin, Juliet. 2013. “White House Delayed Enacting Rules Ahead of 2012 Election to Avoid Controversy.” Washington Post, December 14. http://www.washingtonpost.com/politics/white-house-delayed-enacting-rules-ahead-of-2012-election-to-avoid-controversy/2013/12/14/7885a494-561a-11e3-ba82-16ed03681809_story.html.Search in Google Scholar
Eilperin, Juliet. 2014. “Obama Working to Mobilize Outside Coalition of Groups to Promote Agenda.” Washington Post, January 14. http://www.washingtonpost.com/politics/obama-working-to-mobilize-outside-coalition-of-groups-to-promote-white-house-agenda/2014/01/14/106fa58a-7bf4-11e3-9556-4a4bf7bcbd84_story.html¯.Search in Google Scholar
Eilperin, Juliet, and Amy Goldstein. 2014. “White House Delays Health Insurance Mandate for Medium-sized Employers Until 2016,” Washington Post, February 10. http://www.washingtonpost.com/national/health-science/white-house-delays-health-insurance-mandate-for-medium-sized-employers-until-2016/2014/02/10/ade6b344-9279-11e3-84e1-27626c5ef5fb_story.html.Search in Google Scholar
Farris, Anne, Richard P. Nathan, and David J. Wright. 2004. “The Expanding Administrative Presidency: George W. Bush and the Faith-Based Initiative.” The Roundtable on Religion and Social Policy, Rockefeller Institute of Government.Search in Google Scholar
Gilbert, Lauren. 2013. “Obama’s Ruby Slippers: Enforcement Discretion in the Absence of Immigration Reform.” West Virginia Law Review 16: 256–310.Search in Google Scholar
Goad, Benjamin. 2014. “New O-Care REGS Slash Fees for Some Unions.” The Hill, March 5. http://thehill.com/blogs/regwatch/healthcare/200041-new-o-care-regs-slash-fees-for-some-unions.Search in Google Scholar
Goldstein, Amy, and Juliet Eilperin. 2013. “How Political Fear Was Pitted Against Technical Needs.” Washington Post, November 2. http://www.washingtonpost.com/politics/challenges-have-dogged-obamas-health-plan-since-2010/2013/11/02/453fba42-426b-11e3-a624-41d661b0bb78_story.html.Search in Google Scholar
Helderman, Rosalind S., and David Nakamura. 2011. “Obama’s Jobs Bill Stalled in the Sentate.” The Washington Post, October 11.Search in Google Scholar
Hess, Frederick M. 2013. “Common Core Could be Jeb Bush’s Romneycare.” National Review, August 15. http://www.nationalreview.com/article/355810/common-core-could-be-jeb-bushs-romneycare-frederick-m-hess.Search in Google Scholar
Jacobs, Lawrence R., and Desmond S. King. 2010. “Varieties of Obamaism: Structure, Agency, and the Obama Presidency.” Perspectives on Politics 8 (3): 793–802.10.1017/S1537592710002033Search in Google Scholar
Klaidman, David., and Andrew Romano. 2012. “President Obama’s Executive Power Grab.” The Daily Beast, October 22. www.thedailybeast.com/newsweek/2012/10/21/president-obama-s-executive-power-grab.html.Search in Google Scholar
Layton, Lyndsey. 2014. “A Fight is Brewing Over Tests in the Common Core Age.” Washington Post, February 12. http://www.washingtonpost.com/local/education/a-fight-is-brewing-over-tests-in-the-common-core-age/2014/02/12/e9eb5ad0-932c-11e3-84e1-27626c5ef5fb_story.html.Search in Google Scholar
Lee, Taeku. 2013. “American the Blue? Thoughts on Racial Divides, Immigration Reform and Electoral Alignments.” Presentation at the John Galbraith Conference on Immigration.Search in Google Scholar
Lewis, David. 2011. “Presidential Appointments in the Obama Administration: An Early Evaluation.” In The Obama Presidency: Change and Continuity, edited by Andrew Dowdle, Dirk van Raemdonck, and Robert Maranto, New York: Routledge.Search in Google Scholar
Liptak, Adam. 2013. “Supreme Court to Hear Challenge to E.P.A. Rules on Gas Emissions,” New York Times, October 15. http://www.nytimes.com/2013/10/16/us/politics/supreme-court-to-hear-challenge-to-epa-emissions-rules.html.Search in Google Scholar
Lizza, Ryan. 2012. “The Party Next Time: The GOP’s Demographic Dilemma.” The New Yorker, November 19. http://www.newyorker.com/reporting/2012/11/19/121119fa_fact_lizza.Search in Google Scholar
Lopez, Mark, and Paul Taylor. 2012. “Latino Voters in the 2012 Election,” Pew Research Hispanic Center, November 7. www.pewhispanic.org/2012/11/07/latino-voters-in-the-2012-election/.Search in Google Scholar
Lowery, Wesley. 2014. “Boehner: ‘Difficult’ To Move on Immigration Reform in 2014,” Washington Post, February 6. http://www.washingtonpost.com/blogs/post-politics/wp/2014/02/06/boehner-difficult-to-move-on-immigration-reform-in-2014/.Search in Google Scholar
Milkis, Sidney M., 1993. The President and the Parties: the Transformation of the American Party System Since the New Deal. New York: Oxford University Press.Search in Google Scholar
Milkis, Sidney M., and Jesse H. Rhodes. 2007. “George W. Bush, the Republican Party and the ‘New’ Party System.” Perspectives on Politics 5 (3): 461–488.10.1017/S1537592707071496Search in Google Scholar
Milkis, Sidney M., Jesse H. Rhodes, and Emily Charnock. 2013. “What Happened to Post-Partisanship? Barack Obama and the New American Party System.” Perspectives on Politics 10 (1): 57–76.10.1017/S1537592711004907Search in Google Scholar
Nathan, Richard. 1983. The Administrative Presidency. New York: Wiley.Search in Google Scholar
Oppenheimer, Bruce I. 2013. “It’s Hard to Get Mileage Out of Congress: Struggling Over CAFE Standards, 1973-2013.” Paper presented at the Conference on Congress and Policymaking in the 21st Century, University of Virginia, June 3–4, 2013.Search in Google Scholar
Pear, Robert. 2014. “Consumers Allowed to Kept Health Care Plans for Two More Years.” The New York Times, March 5.http://www.nytimes.com/2014/03/06/us/politics/obama-extends-renewal-period-for-noncompliant-insurance-policies.html?emc=eta1&_r=0.Search in Google Scholar
Preston, Julia. 2012. “Young Dreamers Say It’s Obama’s Time to Act.” The New York Times, December 1. http://www.nytimes.com/2012/12/01/us/dream-act-gives-young-immigrants-a-political-voice.html?pagewanted=all.Search in Google Scholar
Sanchez, Gabriel. 2013. The Implications for Immigration Reform for Latin American Behavior, presentation at the John Galbraith Conference on Immigration, October 11, sponsored by the Miller Center, University of Virginia, Washington, D.C.Search in Google Scholar
Savage, Charlie. 2006. “Bush Challenges Hundreds of Laws.” Boston Globe, April 30. http://www.boston.com/news/nation/washington/articles/2006/04/30/bush_challenges_hundreds_of_laws/. Search in Google Scholar
Savage, Charlie. 2012. “Shift on Executive Power Lets Obama Bypass Rivals.” The New York Times, April 22. http://www.nytimes.com/2012/04/23/us/politics/shift-on-executive-powers-let-obama-bypass-congress.html?_r=0.Search in Google Scholar
Shapiro, Sidney, and Ronald Wright. 2011. “The Future of the Administrative Presidency: Turning Administrative Law Inside-Out.” University of Miami Law Review 65 (2): 577–620.10.2139/ssrn.1738491Search in Google Scholar
Skocpol, Theda, and Lawrence R. Jacobs. 2012. “Accomplished and Embattled: Understand Obama’s Presidency.” Political Science Quarterly 127 (1): 1–24.10.1002/j.1538-165X.2012.tb00718.xSearch in Google Scholar
Smith, Lauren. 2012. “Duncan Shows Congress the Way Around Gridlock.” CQ Weekly, May 10. http://public.cq.com/docs/weeklyreport/weeklyreport-000004044526.html. Search in Google Scholar
Somashekhar, Sandhya. 2012. “Romney Would Face Tough Road Trying to Repeal ‘Obamacare’ if Elected President.” Washington Post, July 20. http://www.washingtonpost.com/politics/mitt-romney-would-face-tough-road-trying-to-repeal-obamacare-if-elected-president/2012/07/10/gJQAh4nmaW_story.html.Search in Google Scholar
Sollenberger, Michael A., and Mark J. Rozell. 2012. The President’s Czars: Undermining Congress and the Constitution. Lawrence: University Press of Kansas.Search in Google Scholar
Sun, Lena H, Sara Cliff, and Sandhya Somashekhar. 2013. Obama’s Health Law Fix Sends Insurers, Officials Scrambling.” Washington Post, November 15. http://www.washingtonpost.com/politics/challenges-have-dogged-obamas-health-plan-since-2010/2013/11/02/453fba42-426b-11e3-a624-41d661b0bb78_story.html.Search in Google Scholar
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