President Barack Obama and Napoleon Bonaparte

How many pens does President Barack Obama have and how many phones does he use to exercise unilateral executive power? The United States Supreme Court did not answer these questions but it did examine whether he has acted in an unconstitutional manner in exercising that power.

The Court in National Labor Relations Board v. Noel Canning on June 26, 2014 decided by vote of 9-0 that the president’s non-recess appointments were an unconstitutional abuse of power because his action usurped the advice and consent duties of the U.S. Senate. This decision was based on the technical issue of whether the U.S. Senate was in “recess” or in session when the appointments were made, and the Court decided they were invalid because the Senate was not in recess.

Though some immediate problems arise as a result of the Court’s decision, such as the future of recess appointments, and the many previous rulings of the NLRB involving members of the Board, more important is that it is the forerunner of future Court decisions on whether the use of executive power by the president has been legitimate or appropriate on other, more general issues.

Since the founding of the American Republic the question of the nature and extent of presidential executive power has been controversial. In Federalist Paper 51, James Madison, trying to explain his version of the necessary partition of power in government argued that the “several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.”

The overall intent of the Founding Fathers was to avoid the defects of the British system of the 16th and 17th centuries. Until the Bill of Rights was passed in 1688, laws might be made by proclamation of the king, who could also suspend or dispense with laws. James I in 1610 declared he had an inherent authority to assert power in the absence of legislation. 

Clearly, the new political system of the United States was intended to avoid this extreme position, and Alexander Hamilton in Federalist Paper 70 argued for a more restrained presidency. He did argue that “A vigorous executive is not inconsistent with the genius of republican government… Energy in the executive is a leading character in the definition of good government.” But at same time, Hamilton disapproved of leaders who think themselves bound “in honor, and by all the motives of personal infallibility, to defeat the success of what has been resolved upon contrary to their sentiments.”

No one is likely to confuse Obama with Napoleon Bonaparte or even with Charles de Gaulle, who advocated the strong use of executive power. Yet, though Obama has said, in a somewhat offhand way, “we’ve got this whole thing about the separation of powers,” a number of Obama’s statements on the use of unilateral power are cause for concern. The most explicit was a statement he made on January 14, 2014. He said, “We’re not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help they need. I’ve got a pen and I’ve got a phone. And I can use that pen to sign executive orders and take executive actions and administrative actions.” Obama planned to mobilize non-profit groups and corporations to help him make progress on issues when legislation he desired was stalled in Congress.

To discuss the constitutionality or the appropriateness of Obama’s attitude, it is not necessary to ascribe to him the characteristics mentioned by George Will of “intellectual sociopathy and sometimes indifference to truth.” Yet, though Obama has been admired for charm, eloquence, and charisma, only the most obsequious would deny he has also displayed less endearing qualities such as arrogance and self-righteousness in an inflated sense of what should, or should not, be done.

Nor is it desirable to label him as narcissistic for his desire to advance what he calls his mission to unify all Americans. His campaign and initiative in October 2012 that “We Can’t Wait” was not the declaration of someone with Napoleonic delusions of grandeur but a political response to what he regarded as inaction by Republicans in Congress. It was an initiative to institute ambitious policies by executive orders, administrative rule making, and recess appointments.

Nevertheless, one recalls that Napoleon’s full name was Napoleon Bonaparte. Napoleon was a military warrior, a political dictator, a believer in concentrated power, a charismatic leader, an imposer of order, a demagogue gifted in theatrical gestures, and the ultimate symbol of French imperial glory. At the same time, Bonaparte embodied the republican ideal, the concept of popular sovereignty with an emphasis on equality. 

It is not too farfetched to suggest that Obama’s understanding of political legitimacy has some resemblance to what has been termed Bonapartism. The term stems from the acquisition of power by Napoleon I in 1799 and by Napoleon III in 1851, and has some resemblance to events in 1958 when Charles de Gaulle created the Fifth Republic and became president of it. Originally, the term refers to the taking of power or by a coup in the name of public safety by an individual at a moment of crisis. There is, of course, no direct comparison between that definition and Obama since he gained power in legitimate fashion without a coup. 

There are also differences between the policies of Obama and Bonapartism that, among other things, calls for a strong central state, a belief in the nation and glory, a strong role in international affairs, an emphasis on national unity, and a claim to be above party politics. But there are similarities that emerge in analyzing the basis and exercise of Obama’s power in three respects: the belief that there is a personal direct relationship between the ruler or head of the executive and the people; that the ruler, not the elected legislative body, knows what is best for the people; and that the executive leader should take initiatives by direct action, holding that the legislature is unwilling or incapable of taking action. 

In this view the providential leader is the incarnation and symbol of popular sovereignty, and makes law or waives directives he deems undesirable or impractical. The United States political system does allow presidential discretion in enforcing laws and in setting priorities. President Obama has exercised this option and many of the regulations he has made are lawful.

But other actions by Obama are doubtful from a constitutional point of view such as his alteration of the starting date for the implementation of certain aspects of the Affordable Care Act (ObamaCare) from January 1, 2014 to January 1, 2015, and the 30 unilateral alterations of it. He has taken action or is planning to take action on a considerable number of further issues, some controversial. They include the We Can’t Wait initiative, dealing with tax credits, homeowners, and student loans, and issues such as immigration, gun controls, gay rights, gender identity, the environment, raising the minimum wage for federal contractors and expanding the number of workers eligible for overtime pay, federal funding of manufacturing initiatives by research and grants to private companies, establishment of the Pacific Remote Islands Marine National Monument, and setting limits on fishing off the Pacific Coast.

Obama’s attitude as expressed in an interview on July 2, 2014, is based on the partisan and ideological argument that “We have a Congress that’s broken down… We have a House of Representatives that is so ideologically driven at this point that they are not able to carry out basic functions of government … what I have to be sure I’m doing is looking for every opportunity to go ahead.” This is the Bonapartist argument, the concept of advancing the proclaimed necessary mission by disregarding or minimizing the legislative body which happens to disagree with the executive authority. It is a personal, direct appeal of the leader to the people.

In his speech at the Champ-de-Mars on June 1, 1815, two weeks before the battle of Waterloo, Napoleon said, “French people, my will is that of the people; my honor, my glory, my prosperity, cannot be different from the honor, glory and prosperity of France.” A shrewd politician, Napoleon, in trying to justify his actions, sought approval of the people in four plebiscites. In 1800, on the adoption of the Constitution of the Consulate; in 1802 on the Consulate for life; in 1804 on hereditary Monarchy; in 1815 on Additional Acts, legislative and municipal elections. 

President Obama is unlikely to resort to the device of plebiscites to justify his actions. But he must be aware that public opinion polls show less than majority approval of his executive actions and his disdain for Congress. The U.S. Supreme Court, no doubt in its session next year, will make decisions on the constitutionality of those actions. In the meantime, attention must be paid that those actions are not a clear and present danger to the American democratic political system.

Michael Curtis is author of Jews. Antisemitism, and the Middle East.