It appears that President Obama is about to unveil some new initiatives regarding housing and student loans. These may or may not be good policies — I honestly have no idea. But the idea that the president is somehow “sidestepping” Congress in doing this strikes me as just wrong. And yet that’s exactly how the Drudge Report is billing it, and also how Phil Kerpin is describing it in his Fox News opinion piece:

Last month at a gala for the Congressional Hispanic Caucus Institute, President Obama said: “I wish I had a magic wand and could make this all happen on my own…There are times where — until Nancy Pelosi is speaker again, I’d like to work my way around Congress.”

This week, Mr. Obama is moving forward to do precisely that.

He is acting to disregard the bipartisan rejection of his so-called jobs bill – another warmed over stimulus bill like the one that already spectacularly failed – and implement large pieces of it without approval from Congress. The president is simply pretending the bill passed and moving forward, starting with yet another mortgage bailout.

Again, I don’t think this is even close to correct. And I say that as someone who is very skeptical of executive power within the American system. Three points:

1) The president can only act on legal authority.  He’s not a monarch. His authority comes from two places: either under the Constitution or under laws enacted by Congress. To suggest that the president is “sidestepping” Congress is akin to saying he’s violating either the law or the Constitution. Which in some cases is a reasonable position: there are certainly arguments to be made that, in the case of war powers, presidents throughout history have stretched well past the limits of their constitutional bounds. I happen to think that’s true.

But such arguments are much tougher to make about domestic policy; the president doesn’t really have much inherent constitutional authority beyond the general grant to “faithfully execute the laws.” He can’t build an army, he can’t spend money from the Treasury, he can’t raise money for the Treasury, he’s not even entitled to a free house in Washington to live in. And he sure as heck can’t change legislatively-enacted policies regarding federal mortgages or student loans. All of those things are controlled by law, and the laws are made by Congress. Period. Via the veto, the president gains some bargaining leverage as a negative actor in the legislative process, but that just makes him a player, not a unilateral actor.

Are there things in the president’s failed legislative jobs package that would have gone through under law but now might go through under executive order or agency rule-making? Maybe. But none of those things would have been prohibited from going through under executive order prior to the legislative stall-out. If the president has the discretion under law to make executive decisions over certain policies, then he has it, regardless of whether Congress rejected his attempt to make those same decisions by legal enactment. Conversely, there are things the president can never do without congress — first and foremost expend money from the Treasury — and that doesn’t change regardless of circumstance or legislative gridlock.

2) Executive branch discretion in domestic policy is largely a grant of power provided by Congress.  What the president can do is make discretionary decisions when Congress has authorized him to do so, or when the law plainly calls for executive discretion, or at the most when Congress has not prohibited him from doing so. Executive orders aren’t magical tools that allow the president to circumvent the law or decide that when Congress said X they really meant Y; they are mostly consequences of purposeful congressional action, combined with executive and legislative reality. You simply can’t write laws to cover all situations and details. In fact, you wouldn’t even want to try. Congress explicitly and regularly designs the overall policy, but then asks the executive branch — full of people with policy and implementation experience — to fill in the details.

So Congress regularly empowers the executive branch agencies with rule-making authority — think of the dozens and dozens of rules required by the ACA —  and it occasionally grants the president explicit personal statutory discretion (think TARP or the resolution for use of force in Iraq for high-profile examples). But beyond that, some stuff is just inherent discretion. If someone tells you to build a doghouse and writes down your instructions and hands you some money and a deadline, you don’t stop working just because they didn’t specify what type of wood to buy or what shape the door should be. You make a decision. That’s raw executive discretion under law in a nutshell. But a lot of the time it’s even more explicit: your orders for the doghouse plainly state that you should choose the type of wood and shape of the door. Do presidents attempt to stretch this? Sure. But they still have to build the doghouse. They can’t decide to use the lumber for a new deck. Unless Congress says they can.

3) Congress can theoretically reclaim this power whenever it wants. At the highest level, it’s important to remember that, from a legal perspective, Congress owns the executive branch. With the exception of the president himself, pretty much the entire structure of the bureaucracy is a creation of laws made by the legislature. It could theoretically all be torn down in one statute. On a more practical level, it informs a logical consequence: executive orders and rule-making done under congressional-enacted statutes are all subject to reversal by law. Yes, Congress faces a problem that the it can grant the executive branch powers by bare majority but can only reclaim them by supermajority (because of the veto), but the ultimately authority rests with Congress. This is true of virtually everything in the executive branch: if Congress wanted, they could shut off the power at the White House and make the president walk down to the State Department if he wanted to call our allies. They could reduce funding for the president’s staff to zero and move him out of the White House. Obviously, these things are fanciful, but if Congress were to reduce the president to just his constitutional authority, the presidency would look dramatically different.

But we don’t do this. Because it makes perfect sense for a legislature to empower an executive branch to sort out many of the details of policy. There are lots of things for one who believes in congressional supremacy to worry about in the current separation of powers environment.  To build a narrative that executive discretion over federal mortgage and student loans programs is the front line in such a battle is at best alarmist, but mostly just wrong and misleading.

Kerpin did get one thing right in his article:

It is clearly no longer enough for Congress to reject Obama’s bad ideas – they need to step up and actively stop him from working his way around them.

That’s right. If Congress does not like the authority granted to the president under law, they can always change law. And that’s a perfectly sound strategy if you disagree with the president’s actions.