What would a theoretical left wing president do?
October 13, 2016 7:22 AM   Subscribe

Okay, I was thinking about this last night, and realized that I don't understand the full extent of the US president's executive powers, and I don't really understand the political-capital consequences for using them. Questions inside!

What would happen in this scenario?

1. A center left US president is elected but has little support in the Democratic party and, of course, faces massive Republican opposition.

2. The president wants to fulfill campaign promises to stop US military intervention and US backing of rightist violence (eg the death of Berta Cáceres in Honduras), to end the drone program and to close Guantanmo and any other US black sites/torture prisons/etc.

What could this president do? What could be done by executive order? If the president just issued executive orders, what would happen? What could Congress do? What effects would this have on the president's ability to govern in other areas?

I think folks often talk as though the president has immediate power over most US foreign policy and could simply end abuses by signing a thing, and I assume that this is not the case. Obviously a president can advocate for certain policies, but how much can they do if they don't have Congressional support, and how?
posted by Frowner to Law & Government (5 answers total) 7 users marked this as a favorite
The Congressional Research Service has prepared over time a few reports that discuss Executive Orders. CRS reports are well researched, usually pretty short, and prepared and written for Congress by the Library of Congress.
posted by GPF at 7:39 AM on October 13, 2016 [1 favorite]

The short answer is that essentially the president can do whatever she wants and it's basically a dare to Congress to stop her. As partisan gridlock becomes more entrenched and norm-breaking because easier and easier, and more and more damaging to do, it also becomes easier for the president to grab power, via executive order, usually reserved for Congress.
posted by Automocar at 7:56 AM on October 13, 2016 [2 favorites]

I found this New Yorker article enlightening on the specific question of why Obama has failed to close Guantanamo, and I think many of the issues it describes are also more broadly applicable to your larger question. My takeaway from that article was that Obama could close Guantanamo with the stroke of a pen, but was unwilling to face the political fallout from simply releasing all of the prisoners held there, and couldn't place those prisoners elsewhere without cooperation from other elements of the government which has not been forthcoming (even within the executive branch).
posted by enn at 7:59 AM on October 13, 2016 [2 favorites]

A recent Freakonomics episode discussed aspects of your question. Might be worth a listen.

posted by SuperSquirrel at 8:01 AM on October 13, 2016

The main obstacle to closing Guantanamo at this point is the question of where the remaining prisoners will go. They could be tried by military tribunals and convicted or released; however, there is not enough "quality" evidence to do this for all of them. (Non-"quality" evidence here sometimes includes evidence obtained under torture.) Alternately, they could be sent home or sent to third countries; however, the current laws passed by Congress bar this from happening unless we can be sure that the prisoners will not be tortured by the countries that we send them to, and that they will be monitored by the authorities there. So there is a so-called "irreducible minimum" of prisoners that can't be tried and can't be released to places outside the US. And the current laws passed by Congress prohibit bringing any of these prisoners into the US.

This 2013 article by Eric Posner argues that Guantanamo could be closed by executive order. First, the President could declare hostilities with al-Qaeda to be over, and then argue that the Congressional ban on transferring prisoners to the US no longer applies (since we'd no longer be at "war" with al-Qaeda.) Second, the President could explicitly defy this law as being unconstitutional, on the grounds that it effectively requires the prisoners to be held indefinitely. Either option would face opposition from Congress, and both would most likely result in the case being heard before the Supreme Court.

Posner hypothesizes that the reason Obama doesn't pursue the first track is that he wants to continue the drone program, which is authorized under the same law. This would not be a problem for your hypothetical president. However, I suspect that if the President tried to argue that the war with al-Qaeda was over and therefore the laws barring transfers to the US no longer applied, Congress would quickly pass another independent law barring it; and we'd end up with a Supreme Court fight either way. I'm a little less sanguine than Posner is about the prospects of a Supreme Court case on this subject, but then he's a legal scholar and I'm not.
posted by Johnny Assay at 8:24 AM on October 13, 2016 [1 favorite]

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