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For seven solid weeks last fall, President Barack Obama uttered the same four-word exhortation virtually every day, and many times more than once. “Pass my jobs bill,” he’d press Congress directly during appearances in the Oval Office, Rose Garden or Cabinet Room. “Tell Congress to pass my jobs bill,” he’d urge the crowds at a series of speeches arranged to build support for his ideas among the swing-state voters of Virginia, North Carolina, Ohio, Colorado, Pennsylvania and Michigan.
And then, when the president arrived in Las Vegas on the fourth Monday in October, the mantra suddenly went away — only to be replaced that afternoon with another, which has been on Obama’s lips countless times since: “We can’t wait.”
With that rhetorical switch, the president tacitly acknowledged his economic prescriptions were not selling on Capitol Hill and that almost nothing else on his legislative agenda was going to be embraced before the elections, either. At the same time, he made clear his aim to turn the dysfunction at the Capitol to his advantage — making it a backdrop from which he would stand apart, as a leader capable of circumventing what he calls obstructionism to put the government to work for the common good.
As if on cue, Republicans in Congress rushed to play the foil, crying foul with an equivalent sense of urgency and righteousness. They declared that Obama was improperly overstepping the bounds imposed on him by divided government, wrongly denying GOP lawmakers their power to thwart his ideas — and maybe even tempting a constitutional crisis over the separation of powers and the limits of executive authority.
As is so often the case with such Washington flare-ups, the reality is less dramatic than either side has sought to characterize it. Obama has not unilaterally remade the federal government to his liking in the past four months. Neither has Congress seen its powers and prerogatives usurped. Instead, the president has used his bully pulpit, the administration’s regulatory authority and agency grant-making and other bureaucratic powers to tinker with policies mostly at the margins.
Obama does not appear to be exercising his presidential muscle any more forcefully than his immediate predecessor, President George W. Bush, and his administration’s use of its own powers to push its prerogatives is on par with others of the modern era. In his first three years, Obama issued 108 executive orders, compared with 126 during the first three years of Bush’s presidency. In terms of regulation, the current administration issued four fewer rules than Bush did during his first three years in office, according to the Office of Management and Budget. For the most part, “We can’t wait” is little more than a slogan underscored by an aggressive presidential public relations campaign.
If it seems otherwise, one important reason is that Congressional polarization has left the president alone on the policymaking field. With the House and Senate beset by standoff and partisan brawling, Obama has been able to make the most of his modest achievements.
“He looks like a giant because he’s competing against Lilliputians,” said Paul Light, a New York University expert on executive branch operations.
The broad range of areas where the Obama administration is pursuing change on its own this year — from border security to shale gas drilling, preventive medical care to trade enforcement, high-speed rail development to securities regulation, mortgage refinancing to Iraq War veteran aid — only creates “the image that he’s doing a lot of stuff,” said Light, who added: “The something he’s doing isn’t very much. It’s not trivial, but it’s high-level symbolic politics. ... At the end of the day, there’s really no substitute for legislation.”
The challenges for Obama are that almost all of the significant legislating of his presidency happened two or three years ago, beyond the memory of many of his die-hard supporters and independent voters, and all three of his biggest achievements are being used by the Republicans to galvanize their base against his re-election. They are portraying the health care overhaul as both an enormous federal overreach and a misreading of an electorate that was clamoring for jobs much more than universal medical coverage. The GOP says much the same thing about the financial services regulatory revamp. And Republicans assert the economic stimulus package was a boondoggle that deserves much less credit for the recession’s end than the president maintains.
So it’s little surprise, then, that Obama has downplayed both the health care and financial services laws in the early going of his re-election campaign (while daring his critics to try to prove the negative that the stimulus bill didn’t work). Instead, he has been emphasizing his efforts to get things done despite a Congress that has struggled mightily to barely complete even its most basic responsibilities — with the past year characterized by three separate periods of budgetary brinkmanship, a downgrading of U.S. debt and a sinking of Congressional approval ratings to historic, sometimes single-digit, lows. The universal lack of confidence in Congress has given Obama an opening other recent presidents haven’t had. And he is taking it — to a point.
White House spokesman Josh Earnest acknowledged that the “magnitude” of each executive action varies and that “none is a replacement for Congressional action.” But, he said, Obama feels an urgency about trying to turn the economy around. “Everybody has a responsibility to leave no stone unturned” in that respect, he said.
Working Around Congress
The Republican takeover of the House effectively tied Obama’s legislative hands for the second half of his term. Hardly any of his proposals have been greeted with any warmth there in the past 14 months.
Much the same has been true in the Senate, as well — partially because voting on the president’s agenda would put many politically vulnerable Democrats in a bind, and there’s little strategic reason to do that as long as the bills have no chance in the House. Beyond that, Republicans have almost always had the votes necessary to keep the president’s agenda bottled up in a filibuster.
After starting out his presidency with some high-profile overtures to Republicans with records as centrists or deal-cutters, Obama has recently taken a more combative tone in talking about the entire legislative branch. His patience appears to have cracked after several efforts to strike a deficit-reducing “grand bargain” with Speaker John Boehner (Ohio) were thwarted by the GOP rank and file. Some Democrats are none too pleased that, despite their solid support for him, the president has often swept them into his broadly stated annoyance with Congress. But they appear nearly universally supportive of everything Obama’s talking about under the “We can’t wait” rubric.
“I think that probably he thought that in the past it was overly used, and he wanted to work with Congress,” Senate Judiciary Chairman Patrick Leahy (D-Vt.) said about Obama’s initial views of Bush-era assertions of executive authority. “But it’s been difficult when the Republican leader in the Senate says, ‘My primary goal is for him to fail.’ ... You use executive power more if you’re not going to get the opportunity to work with Congress.”
Senior Republicans see another presidential overreach. “When Congress and the president disagree, the train’s supposed to stop,” Sen. Lamar Alexander (Tenn.) said. “Just because you have the power, doesn’t mean you should use it.”
Though not on the White House’s official list of “We can’t wait” initiatives, Obama’s most consequential and controversial actions to date were installing Richard Cordray to head the new Consumer Financial Protection Bureau and putting three new members on the National Labor Relations Board in January. He declared that his actions were recess appointments that were constitutionally valid without confirmation until the end of 2012 — even though the Senate was not in a formal recess that month, having agreed to convene for a few minutes every third day for the explicit purpose of warding off such recess appointments.
Democrats supported the president’s decision, citing what they consider an unprecedented level of GOP filibustering of nonjudicial nominees. They also noted that the Republicans had made clear they were out to stop Cordray not because of his qualifications but because keeping the bureau director’s chair empty would effectively block the agency from exercising some of its powers, and they were similarly trying to stop the NLRB from forming a quorum that might lead to some pro-union rulings.
But Senate Republicans said the recess appointments violated the Constitution and showed a complete disregard for the system of checks and balances and the principal that each branch of government can set its own rules. “He’s taking it upon himself to decide when the Senate is in session,” Sen. Pat Toomey (Pa.) said. “That’s a clear abuse of authority.”
Primarily, Obama has restricted his executive actions to common presidential and administration authorities — regulations, executive orders and setting the priorities for the Cabinet departments and federal agencies. His principal limitations are well-understood. A president may not alter the sums Congress has appropriated for specific programs and agencies. And his executive orders, unlike new laws on the books, are only guaranteed to last as long as his administration.
Obama underscored this reality within days of taking office, when he signed a series of orders reversing Bush policies on environmental deregulation, the use of the military prison at Guantánamo Bay, Cuba, techniques for interrogating suspected terrorists and foreign aid to organizations that provide or promote abortion.
In many ways, the change in the White House from one party to another creates the appearance of a stark difference in the use of executive powers — and, predictably, that causes controversy. But Obama’s effect has been mixed. In kicking off the “We can’t wait” campaign in October, he acknowledged he was just tinkering around the edges by giving states more flexibility to meet federal education standards, reducing the lag time for paying federal contractors and eliminating some “outdated” health care regulations.
“Now, these steps aren’t substitutes for the bold action that we need to create jobs and grow the economy, but they will make a difference. So we’re not going to wait for Congress,” he said. “I’ve told my administration to keep looking every single day for actions we can take without Congress — steps that can save consumers money, make government more efficient and responsive, and help heal the economy. And we’re going to be announcing these executive actions on a regular basis.”
Some actions — such as the recent rule-making mandating employer coverage of contraception — do have a direct effect on businesses and institutions, but those rules do not happen in a vacuum. The birth control coverage mandate, for example, came from authority provided under the 2010 health care law.
Knowing that no new energy policy legislation stands a chance this year, Obama declared in his State of the Union address that he would use his own authority to open more land for oil and natural gas drilling, to get regulators to make available even more areas offshore and to mandate more disclosure of the chemicals used in hydraulic fracturing, a natural gas extraction method commonly called fracking. In doing so, he sought to simultaneously calm two constituencies that are often at odds but are both central to his hopes for a second term: the driving public, which is anxious about rising fuel prices, and environmentalists, who are anxious about supposed risks of too much new exploration.
In the absence of a comprehensive immigration policy rewrite, the president has also moved on his own to reset immigration enforcement priorities. Last fall, he ordered federal agents to focus on finding illegal immigrants with criminal records as a means of enhancing national security and not to worry so much about pumping up the number of total deportations. The move was intended to win favor among Latino groups — who, like environmentalists, are a part of his political base.
With no trade deals headed to the Capitol for ratification this year, the president has instead made several moves to bolster enforcement of the existing rules of global commerce, with China as his focus — another move that makes political sense in light of the number of voters who fear their futures are too ripe for disruption by that booming economy.
But for every time the president has actually put his thumb on the federal regulatory scale to help his chances in November, there’s an example of his doing little more than leveraging his administration’s power to persuade corporate America to act.
Last fall’s “We can’t wait” agenda for reducing the unemployment rate among veterans, for example, was mainly about the Department of Health and Human Services leaning on local medical businesses to hire veterans and about creating an online Veterans Affairs job bank for skilled veterans. And his proposal in January for returning more jobs to the United States from overseas was centered on a Small Business Administration pledge to educate business owners on the benefits of “in-sourcing” and having the Commerce and State departments work together on trade promotion.
Presidents can have a significant effect on policy through slight shifts in the regulatory process, such as altering the methodologies used to assess the cost and effectiveness of altered rules. And those modifications have continued apace under Obama. “Agencies are doing exactly what they’ve always done,” said Jessica Randall, regulatory policy analyst at OMB Watch.
Jim Tozzi, a lobbyist who ran the regulatory oversight arm of the OMB at the start of the Reagan administration, said the White House is acting now much as it did in the 1980s — “but we didn’t broadcast it.” Tozzi also said Congressional complaints about the president overstepping his bounds sound hollow. “The last thing you’d want is having the president tied up,” he said, “having to go to Congress and beg for authority to do anything.”
The big changes in regulatory approach often come from one administration interpreting a statute differently from the previous administration, Randall said. In the Bush years, for example, cost-benefit analysts at the Environmental Protection Agency were told by the OMB to value the lives of older Americans less than those of younger Americans — and the effect was to lessen the projected benefit of clean air regulations on the overall population. Obama’s analysts weigh the value of regulations equally on all age groups — and the effect is to make the projected benefit go up.
Obama has faced GOP criticism for issuing more costly regulations than his predecessors. And, in fact, his administration has issued 194 rules with an economic effect of more than $100 million — 38 percent more of such regulations than in Bush’s first three years. But Randall said successive presidents tend to outdo each other because the $100 million threshold was set in the 1970s and has never been adjusted for inflation.
The controversy over this administration’s reach largely derives from the legislation that gave the agencies the rule-making authority in the first place. For example, the 2010 financial regulatory overhaul known as Dodd-Frank limited banks to a 3 percent investment in any hedge fund and bars them from proprietary speculative trading. Republicans never liked the Volcker Rule and neither did the banks. So ever since the process of writing the details of enforcement began last year, financial services firms have been arguing that the regulators are wrongly and too narrowly interpreting the intent of Congress.
The Role of Congress
In a recent speech to conservative activists, Sen. Orrin Hatch (Utah), the top Republican on the Finance Committee, asserted that Obama is “using the regulatory process to achieve goals unthinkable in the legislative process.” And he said Congress was somewhat to blame because it had started giving too much regulatory power to the president as part of legislation. The health care law is the “perfect case study” for that, he said: “Democrats in Congress who wrote and passed the law delegated an unprecedented amount of rule-making authority to the executive branch.”
Some Democrats agree that Congress has been too willing to boost executive power, but they have other concerns. Senate Democratic Conference Secretary Patty Murray (Wash.) cites efforts to restore some version of line-item veto power to the president and the Congressional pledge to avoid earmarking in spending bills. And, indeed, there is a sentiment shared by some lawmakers all along the ideological spectrum that spending decisions dictated by Members of Congress are more transparent and efficient than those made by anonymous administration bureaucrats.
The absence of Congressional earmarks for the past year has allowed the Obama administration to shape spending in ways Congress does not like. A pool of Department of Transportation money that might have gone to parochial construction projects in the past, for example, has recently been tapped to continue preliminary work on the president’s high-speed rail proposal, which Republicans have made clear they oppose.
Reviving earmarks is not the answer for reclaiming legislative power, critics of the process say, but writing laws that limit executive power would be.
“Congress needs to write objective criteria; then the executive has no discretion and is simply forced to carry out the directives of the legislature,” Toomey said.
Alexander agreed and pointed to the impasse over the rewrite of education policy as giving the president an ill-timed opening. “I think we have to accept responsibility for failing to reauthorize the law and fix the problems of No Child Left Behind legislatively,” he said.
Given the attitude on Capitol Hill that lawmakers have already given away too much power, it was no surprise that Obama’s most recent request for even more authority landed with a thud. The president in January asked Congress to give him broad abilities to reorganize the executive branch, and he outlined a plan to streamline six agencies that “promote competitiveness, exports and American business” by revamping the business and trade functions of the Small Business Administration, the Office of the U.S. Trade Representative, the Export-Import Bank, the Overseas Private Investment Corporation and the U.S. Trade and Development Agency. There is essentially no chance such a bill will move this year.
Obama — a one-time lecturer in constitutional law and a former Senator — has said he agrees with the notion that, ideally, Congress would become functional enough to reassert its role in the policymaking machine.
“We need them to get their act together,” Obama said of lawmakers in October. “Because the truth is, the only way that we can truly attack our economic challenges, the only way we can put hundreds of thousands of people back to work right now is with bold action from Congress.”