A Hands-Tied Presidency?

In an essay for the NYT Sam Tanenhaus argues that President Obama “holds office at a time when the presidency itself has ceded much of its power and authority to Congress.”  No, really.  This is what he says.  It is, frankly, a rather bizarre claim.  As a great deal of academic work has documented (including an important piece by one Elena Kagan) there has been a distinct trend toward greater executive authority and control over domestic policy.

Tanenhaus notes that Obama, like George W. Bush, has had a difficult time getting major legislation through Congress, particularly in his second term.  Yet it is not as if Congress is pursuing some separate agenda, against the will of the President. Rather, it’s not pursuing any agenda at all.  And congressional abdication — combined with extensive delegation of quasi-legislative authority to the executive branch — has abetted the accumulation of executive power.  Throughout the 1980s and 1990s, Congress regularly adopted all sorts of measures, including appropriations riders, to constrain executive action.  This has been particularly common when Congress was held by the opposition party.  Yet with today’s divided and dysfunctional Congress, relatively little is done to hold the executive in check.  Even arguably illegal executive actions prompt little more than the occasional oversight hearing.

Tanenhaus’ essay is prompted by Obama’s decision to seek congressional approval for intervention in Syria which, he believes “shows a greater deference on war and peace than any president since Franklin D. Roosevelt.”  Really?  The Bush Administration sought Congressional approval for the wars in both Afghanistan and Iraq, did it not?  Admittedly these authorizations were fairly open-ended, but the authorizations were obtained nonetheless.  And lets not forget about Libya.  Not only did the Administration not seek Congressional approval, it also rejected the opinion of this Administration’s own OLC as to whether Libya intervention would constitute “hostilities” for purposes of the War Powers Resolution.  As Tanenhaus concedes, “the executive branch’s role in national security has grown mightily in recent decades.”  That the President has gone to Congress for approval to strike Syria does not change this fact, nor is it evidence of a “hands-tied presidency.”

UPDATE: Andrew Rudalevige comments at The Monkey Cage.