Selective Executive

Last year, I noted that President Barack Obama seemed to be selectively leveraging his executive muscle in favor of certain constituencies and not doing so to benefit others. Following the passage and effective date of the Affordable Healthcare Act (“ACA”), the President acted, probably in illegal fashion, to help the business community by delaying application of the new law’s burdens on employers. (As Jon Stewart noted at the time, the administration did not afford other constituencies, like young people, the same benefit.) What the President was willing to do– circumvent Congress to achieve a desired policy outcome– last July for businesses under the ACA he was not willing to do for immigrant families being split up under deportation laws last November, suddenly bemoaning that Congress was standing in his way (“When it comes to immigration reform, we have to have the confidence to believe we can get this done, and we should get it done. The only thing standing in our way right now is the unwillingness of certain Republicans in Congress to catch up with the rest of the country.”).

This seesaw pattern has continued in 2014, and others are catching on. Earlier this month, Glenn Greenwald noticed another executive power incongruity emanating from the White House, this time in the foreign policy context. Like his selective enforcement of the ACA, the President likely illegally circumvented Congress and released five Guantanamo Bay prisoners in exchange for the return of an American prisoner. The exchange provided a public reminder of many things, one of the most basic of which was that the U.S. prison at Guantanamo Bay remains open and operative, contrary to the President’s longstanding promise to close it. As Greenwald points out, “the sole excuse now offered . . . for this failure [to close Guantanamo] has been that Congress prevented [the President] from closing the camp.” He concludes: “either the president broke the law in releasing these five detainees, or Congress cannot bind the commander-in-chief’s power to transfer detainees when he wants, thus leaving Obama free to make those decisions himself. Which is it?”

If the President’s actions do not contradict his words, they at least illuminate his priorities. The President may truly desire all of the policy outcomes he professes to seek. By leveraging his executive might in pursuit of some of those outcomes and not others, though, he reveals which goals really matter to him. The above examples show that, for President Obama, helping businesses and securing the return of an American POW were high-priority goals, while helping immigrant families and closing the Guantanamo Bay prison are lesser priorities.

If there is a lesson here, it is not a new one: when evaluating a politician’s performance, we cannot merely rely on her own words. It is appropriate to measure a politician’s record against the rubric she makes for herself through campaign promises and other goal-setting pronouncements. In conducting that measuring, however, we must look to the politician’s actions, and we must look at them in context, not in isolation. When an elected leader shows that he is willing to exceed the legal confines of his office in order to achieve a goal, we should accord little weight to his complaint that the same legal obstacle, elsewhere ignored, precludes his achievement of another ostensibly desired goal. We may not reasonably be able to expect forthright honesty in our leaders’ self-critical evaluations, but we ought to demand that degree of thoroughness of our own critical evaluations of our leaders.