I was asked this question by a reporter, who wrote this story. Although the answer is “no” in any direct sense, the question reflects a low-level uneasiness I have noticed among Obama supporters who have praised (or rationalized) his aggressive executive unilateralism (especially as reflected in his immigration orders) but worry that it may set a precedent that future Republican presidents will take advantage of.
But it’s not clear whether presidents set precedents or, if they do, how it works, and when it is good or bad. Consider some possibilities.
- When a president engages in an action that is legally questionable, future presidents will find it easier to engage in the same action, but it must be the same action. For example, President Obama’s deferral order sets a precedent for just that—deferral orders in the immigration context. President Trump can do the same thing, but why would he?
- Future presidents will be able to engage in roughly comparable actions in different settings. President Trump will be able to defer action against corporate tax law violators, for example. But how would this work? If Trump said that he can defer action against corporate tax law violators because Obama deferred action against immigration law violators, would anyone really say, “well, then, okay”?
- Future presidents will be able to engage in executive actions that are unrelated. President Trump will be able to impose the death penalty on cop killers, as he has proposed, even though this is not deferral of prosecution or any other executive action that is supported by precedent, but an affirmative act that would violate deeply rooted constitutional norms. This is even less plausible than #2.
- Or—future presidents will not obtain any additional power whatsoever, or will even lose power. Some commentators claim that George Bush’s national security-related executive actions (surveillance, torture) provoked a backlash, making it more difficult rather than easier for future presidents to stretch the law in the area of national security. If a Republican president says he can defer action because Obama did, won’t people say—but you said that Obama acted illegally?
No one understands how unwritten constitutional norms develop. A common idea is that norms of reciprocity prevail throughout the political system. If Democratic Senators obstruct a Republican president’s appointments, then Republican Senators will obstruct appointments when a Democratic president comes to power—and vice versa. But are these norms of reciprocity powerful or weak?
Another theory is that it may be easier, as a political matter, to defend an action—like a military intervention without congressional support—if the president can point to a like action of an earlier president, especially an earlier president of the opposite party. But are these arguments really effective? Hard to know.
By the way, Democrats should consider one other possibility—that the next president (or the next several presidents) will be a Democrat. If that is the case, then Obama’s actions that expand executive power will benefit Democrats, not Republicans, in the near future. And a last thought: you might think that a Congress of either party or a divided party might cause mischief relative to even a Republican president. To evaluate Obama’s precedent-setting actions, you need to take all of these factors into account.