Isabella Carter
President Barack Obama's approach to governance has been criticised as being in disregard of the US Constitution. Obama's administration pushed thousands of new regulations in 2016, his eighth year in office, with his executive agencies pursuing the president's priorities without much regard for congressional interference. Obama himself stated that he would not wait for legislation to help Americans, indicating that he would bypass Congress and use executive orders to get things done. This approach has been described as constitutionally illiterate and as disregarding the costs, practicality, and legality of rules pushed through by federal agencies. The question arises as to whether Obama's loosening of regulations goes against the Constitution, specifically in relation to the Congressional Review Act and the potential overreach of executive authority.
| Characteristics | Values |
|---|---|
| Obama's approach to loosening regulation | Using a combination of the bully pulpit and executive orders to bypass Congress |
| Number of executive orders signed in 2016 | 42 |
| Obama's intent | Pushing through the president's priorities without congressional interference |
| Obama's actions on Guantanamo Bay | Signed an indefinite detention bill into law, restricting the transfer of detainees and making it more difficult to close the facility |
| Criticism | Obama's approach is seen as disregarding the costs, practicality, and legality of rules, and not being a way to govern a representative democracy |
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What You'll Learn
Obama's use of executive orders
Barack Obama issued 277 executive orders during his eight years in office, averaging 35 per year. This number is slightly fewer than the 36 per year issued by his predecessor, George W. Bush, and the lowest average since Grover Cleveland, who issued 32 per year during his eight nonconsecutive years in office. Obama ranks 16th among US presidents in the total number of executive orders issued and 21st in the average number issued per year.
In one example, Obama eliminated a pair of George W. Bush's amendments with an executive order. Obama also used proclamations to create new national monuments in Nevada and Utah.
In 2016, Obama signed 42 executive orders, from EO 13716 through EO 13757. At the year's first Cabinet meeting, Obama stated his intention to use executive orders to bypass Congress: "I've got a pen, and I've got a phone [...] We are not just going to be waiting for legislation in order to make sure that we're providing Americans the kind of help that they need."
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Obama's bypassing of Congress
During his presidency, Barack Obama resorted to bypassing the legislative branch, Congress, on several occasions. Obama's bypassing of Congress has been criticised as "draconian rule by decree", with some analysts claiming that it sets up a potential showdown of historic proportions with lawmakers and an increasingly outraged American public.
In a 2014 address, Obama announced that he would no longer wait for Congress or legislation to impose his agenda to "fundamentally transform" America. He stated that he would use executive orders and executive actions to advance his plans, which included helping Americans and improving education standards. Obama's administration has also been accused of bypassing Congress on issues such as gun control, immigration, welfare, and energy, which are seen as constitutionally off-limits to Washington, D.C.
Obama's use of executive power has been compared to that of a third-world dictator, with critics arguing that it undermines the Constitution and the separation of powers. For example, in 2011, Obama instructed the Justice Department to no longer enforce the 1996 Defense of Marriage Act, which was seen as an "extreme and unprecedented deviation from the historical norm" by some Republicans.
However, it is important to note that Obama's bypassing of Congress has been enabled by a "dysfunctional" and unproductive Congress that has failed to pass important legislation. Obama's administration has also emphasised that they are open to working with both Democrats and Republicans in Congress, even as they pursue executive actions.
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Obama's signing of the indefinite detention bill
On December 31, 2011, President Barack Obama signed the National Defense Authorization Act (NDAA) into law, which included a provision for indefinite detention without charge or trial. This decision has been viewed as a contradiction of the Constitution and a concern for civil liberties.
Obama's signing statement expressed "serious reservations" about the provisions, but it only applied to how his administration would utilise the NDAA's authorities and did not restrict future administrations' interpretations. The bill grants the president the authority to use all necessary and appropriate force, including the power to detain individuals linked to al Qaeda, the Taliban, or associated forces engaged in hostilities against the United States.
The American Civil Liberties Union (ACLU) and other critics have expressed disappointment in Obama's decision, arguing that it extinguishes hopes for a rollback of the constitutional excesses of the "war on terror." They worry that the law lacks temporal or geographic limitations, allowing for potential abuse by this or future presidents to detain people captured far from any battlefield, including American citizens, without charge or trial.
The bill also includes provisions that make it challenging to transfer suspects out of military detention, which the FBI has testified could jeopardise criminal investigations. Obama's action has been characterised as a "'blight on his legacy'" by the ACLU, and it remains a controversial aspect of his presidency.
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Closing Guantanamo Bay
Since its opening, Guantanamo Bay has held 779 detainees, all of them Muslim, and the vast majority without charge or trial. Nine detainees have died, and as of January 2025, 15 remain captive. Three have been recommended for transfer out of Guantanamo by US national security agencies but continue to be held indefinitely. The Center for Constitutional Rights has prepared biographies of some of the prisoners currently being held in Guantanamo Prison.
There have been numerous calls for the closure of Guantanamo Bay, including from former government officials, non-governmental organizations, and international bodies. Five Defense Secretaries, eight Secretaries of State, six National Security Advisors, and dozens of retired military personnel have supported closure. In January 2023, a group of over 150 NGOs from across the world wrote to President Biden urging him to close Guantanamo. The United Nations Special Rapporteur on Human Rights and Counter-Terrorism, Fionnuala Ní Aoláin, released a report in June 2023 concluding that prisoners at Guantanamo endure "cruel, inhuman, and degrading treatment" and recommending the closure of the facility.
Despite these calls, closing Guantanamo Bay has proven challenging due to political opposition and legal restrictions. In 2011, President Obama signed the Defense Authorization Bill, which restricted the transfer of Guantanamo prisoners to the mainland or foreign countries, hindering the closure of the facility. Congress has consistently opposed moving prisoners to facilities in the United States, and in 2011, the US Secretary of Defense stated that Guantanamo Bay was unlikely to be closed due to this opposition.
However, there have been some efforts to close Guantanamo Bay. In November 2015, President Obama announced a plan to close the facility and move some terrorism suspects to US soil. The Biden Administration has also expressed its commitment to closing Guantanamo, but critics argue that concrete steps have not been taken to ensure the successful relocation of detainees. As of January 2025, 11 Yemeni prisoners were transferred from Guantanamo Bay to a detention facility in Oman, reducing the occupancy at Guantanamo.
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Gun control
Despite being portrayed as the "most anti-gun president in American history", Barack Obama's record on gun control is considered by some to be fairly weak. Obama himself expressed support for the Second Amendment, stating: "If you’ve got a rifle, you’ve got a shotgun, you’ve got a gun in your house, I’m not taking it away". During his first term, Obama did not call for any major new restrictions on guns or gun owners. Instead, he urged authorities to enforce the state and federal laws already in place.
In 2010, Obama signed bills allowing Amtrak passengers to pack guns in their luggage and carry loaded firearms into national parks. However, Obama's critics point to his issuance of 23 executive actions on gun violence in January 2016 as evidence of his anti-gun stance. These actions included further augmenting licensing requirements and background checks, funding more federal agents, and tracing guns found during investigations to determine trafficking patterns. Obama also supported a ban on assault weapons and high-capacity magazines, and he proposed a plan to reduce gun violence with four parts: closing background check loopholes, banning assault weapons, making schools safer, and increasing access to mental health services.
Despite Obama's efforts, Congress blocked his calls for new gun laws after mass shootings, and only two gun laws were passed during his two terms in office, neither of which placed additional restrictions on gun owners. Obama's successor, Donald Trump, also rescinded a rule Obama had implemented that required the Social Security Administration to report disability-benefit recipients with mental health conditions to the FBI’s background check system.
In summary, while Obama expressed concern about gun violence and took some executive actions, he faced significant opposition and was unable to pass major gun control legislation during his presidency.
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Frequently asked questions
Obama issued 42 executive orders in 2016, and pushed thousands of new regulations in his eighth year in office.
Obama did bypass Congress on at least one occasion, when he vetoed a resolution of disapproval from Congress regarding an ergonomics rule.
Obama's critics have claimed that he disrespected the Constitution, and that his administration was not troubled by "constitutional niceties".
Obama's critics have claimed that he made it more difficult to close Guantanamo by signing an indefinite detention bill into law.
Obama's critics have claimed that his executive orders disrupted the work of human rights groups and undermined international justice efforts.
