Obama Power Play

Executive actions on carbon emissions latest end-run around Congress

President Barack Obama’s announcement this week of environmental regulations requiring power plants to dramatically cut greenhouse gas emissions by 2030 was just the latest in a long line of regal fiats that go around Congress.

From environmental regulations to immigration to health care, Obama has simply expanded presidential power, often by constitutionally and legally dubious maneuvers, as the people’s representatives thwart his aims.

Louis Fisher, scholar in residence at the Washington-based Constitution Project, said Obama came into office after heavily criticizing George W. Bush’s use of executive power.

“And he hasn’t been much different,” Fisher said. “If anything, Obama has been worse when it comes to unilateral action.”

The final power plant rule unveiled by the Environmental Protection Agency this week calls for a 32 percent reduction from 2005 levels of carbon dioxide emissions by 2030.

The rule drew almost immediate lawsuit threats. Its provisions would never have been enacted by Congress. Obama is using questionable authority under the Clean Air Act to do it himself.

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The rule drew almost immediate lawsuit threats. Its provisions would never have been enacted by Congress. So Obama is using questionable authority under the Clean Air Act to do it himself.

It is not the first time this president has come under fire from critics alleging his administration has overstepped its authority on environmental regulation. In June, the U.S. Supreme Court ruled that the EPA failed to take into consideration the costs to utilities when it set limits on toxic air pollutants in 2011.

The Obama administration also has run into legal trouble on immigration. A federal judge in Texas temporarily blocked his plan to grant quasi-legal status and issue work permits to millions of illegal immigrants while lawsuit challenging the scheme proceeds. An appeals court in New Orleans upheld that decision in May.

Experts point to the immigration plan as perhaps the most dramatic example of Obama’s use of executive power, both because of its sweeping provisions and because the president repeatedly had insisted that he did not have the authority to override Congress’ will. The fact-checking website PolitiFact in 2013 rated as “mostly false” a heckler’s assertion that Obama could enact the program similar to the one he ultimately did.

Building on Previous Power Grabs
Benjamin Ginsberg, chairman of the Center for Advanced Governmental Studies at Johns Hopkins University, said Obama has built on power that past administrations have assumed. The result: a weakened Congress, which the Founding Fathers intended to be the branch that makes law.

“Whenever a president has done something that expands presidential power, successor presidents never give it up,” he said. “I predict the next president will do even more. … I’d like to say Obama is the worst, but he’s just the latest.”

Ginsberg, author of the forthcoming book “Presidential Government,” said presidents often turn to executive authority when Congress frustrates their legislative agenda.

“Isn’t it easier to issue executive orders rather than steer legislation through Congress?” he said.

Ginsberg argued it is healthier for democracy when the people’s representatives hash out public policy through debate and compromise, even when the legislative body appears gridlocked and dysfunctional.

“I’m a big fan of the Congress — warts and all,” said Ginsburg. “The reality is, that’s democracy. Democracy is not clean. It’s not pretty.”

“I’m a big fan of the Congress — warts and all,” he said. “The reality is, that’s democracy. Democracy is not clean. It’s not pretty.”

On the Affordable Care Act alone, Obama has acted 32 times on his own to change the landmark health care law known as Obamacare. According to the market-oriented Galen Center, many of those changes delayed implementation deadlines specifically set by Congress.

In February 2013, the administration prematurely closed the high-risk pool and shifted funds available for that purpose to advertising for enrollment in the health exchanges and other priorities. In September of that year, the administration offered employer contributions to members of Congress and their staffs, even though the law did not provide that subsidy.

In other instances, Obama simply made more aggressive use of old laws on the books. Last month, with a stroke of a pen he made more than a million acres in Texas, California and Nevada national monuments, which impose certain restrictions on commercial activity. That makes 19 new monuments created or expanded by Obama, encompassing more than 260 million acres of public lands and waters. It’s the most acreage of any president, though Bill Clinton made more designations.

The law used by Obama, the Antiquities Act, dates to 1906. Conservatives argue it is outdated, intended by Congress to allow the president to act quickly to prevent the looting of archeological sites.

Obama’s monument designations have caused friction with congressional Republicans from Western states, where the federal government owns a great deal of land. Several have offered legislation in recent years to stop or curtail use of the Antiquities Act, but no bills have passed.

Although the law has been used dozens of times by presidents of both parties, it’s been much more widely accepted in recent Democratic administrations. According to the National Parks Conservation Association, only one Republican president between Dwight Eisenhower and George W. Bush used the law: Gerald Ford designated two national monuments.

Douglas Noonan, director of research at the Indiana University Public Policy Institute, said Obama’s practice has been unconventional in that he has acted so often over the opposition of local congressional representatives.

Noonan said the benefits of increased federal protections — preserving an area’s natural beauty, or creating recreational opportunities — tend to be distributed more widely over the country as a whole. But losses on tax revenue and jobs due to restrictions on activities like mining and drilling tend to be imposed more locally.

“Locals have to pay a price,” Noonan said.

Obama’s Place in History
Like other recent presidents, Obama has used the power of the vast federal bureaucracy to put his stamp on public policy. Ginsberg, the Johns Hopkins professor, said Congress in the past year has only passed about 50 new laws while federal agencies have promulgated thousands of rules and regulations.

He said Ronald Reagan was the first president to fully develop the idea of regulatory review. He created the Office of Information and Regulatory Affairs, which gives the White House more direct control over federal regulations.

“Clinton thought it was a great idea. Bush thought it was an even better idea,” he said. “Obama thinks it’s just a splendid idea.”

Andrew Rudalevige, a Bowdoin College political science professor, noted that Obama brought in Cass Sunstein, a high-profile advocate of a strong regulatory state, to run the office. Congress, he said, often aids a president by passing legislation with vague language — a tactic sometimes necessary to pass contentious bills.

“Presidents look at the vague language, and their eyes light up,” Rudalevige said.

Obama has exerted power by refusing to use it, signaling his intention not to enforce or defend certain laws. When litigants challenged the Defense of Marriage Act, the administration ignored long-standing practice and declined to defend it in court.

Obama has exerted power by refusing to use it, signaling his intention not to enforce or defend certain laws. When litigants challenged the Defense of Marriage Act, the administration ignored long-standing practice and declined to defend it in court on grounds that the government’s lawyers believed it to be unconstitutional.

At other times, the administration has cited “prosecutorial discretion.” In August 2013, for instance, the Department of Justice announced that the government would not enforce federal marijuana laws in states that legalized the drug. The administration also bowed to prosecutorial discretion in laying out its program not to deport certain illegal immigrants.

“Nobody doubts that there is discretion. … But they’ve interpreted it in a pretty expansive way,” Rudalevige said.

Is Congress Powerless?
Congress can impeach a president who acts beyond the Constitution. But the necessity of obtaining 67 votes in the Senate to convict make that an unlikely option. Congress can pass laws overriding regulations and has the power of the purse. But those options cannot work without bipartisan support.

“As long as he can keep his party together, he can stalemate a lot of this,” Rudalevige said. “That’s an issue. I think Congress should have more institutional pride than it’s had.”

Experts said Obama’s opponents should not look to the courts to save them. Notwithstanding the losses that Obama has suffered on the use of executive power, they said judges tend to be wary of getting involved in disputes between the Congress and the president. Federal judges, Ginsberg said, “tend to think that members of Congress are a bunch of idiots.”

The imperial reach has extended to foreign policy. Fisher, the Constitution Project scholar, noted that Obama never sought congressional approval of military action to topple Libyan dictator Moammar Gadhafi or battle the Islamic State.

“Now, we have a broken state in Libya. It’s a breeding ground for terrorism,” Fisher said.

Ginsberg said the presidency has grown more powerful as the government itself has grown. He pointed to another factor: In the 19th century, parties nominated presidential candidates. And they tended to shy away from politicians who would disrupt the status quo, he said.

Public opinion also tends to favor presidents, Ginsberg said. He said democratic debates look messy and inefficient. Contrasted with that, he said, the public often likes the idea of a strong president who makes decisions and acts on them.

“It’s so easy to be seduced by that,” he said. “But then you’re a Russian peasant hoping that the next czar will be better.”

Obama on His Own
Here is a list of some — but not all — of the instances of Obama acting alone to advance public policy goals:

  • Rules on contractors. Shortly after taking office, Obama issued an executive order requiring companies that win federal contracts to offer jobs to the employees of the contractor that previously performed the work.
  • Fuel standards. Obama took primary authority for setting fuel efficiency standards away from the National Transportation Highway Safety Administration — as mandated by Congress — and gave it to the EPA. The government under Obama mandated vehicles to get an average of 54.5 miles per gallon by 2025. The administration also allowed California to pass its own, more stringent standards, despite no authority from Congress to do so.
  • Recognition of Jerusalem. The Obama administration (and the Bush administration before it) has refused to record “Israel” as the place of birth on passports of U.S. citizens born in Jerusalem. Congress passed a law in 2003 mandating the recognition.
  • Abortion lobbying. U.S. law long has prohibited the use of tax dollars to influence abortion policy abroad. In 2011, though, the Obama administration spent $18 million on advocacy groups in Kenya advocating for “yes” votes for a new constitution that expanded abortion services in that country.
  • Creating a new initiative. The administration in March 2012, without congressional authorization, created a pilot program of new manufacturing and development efforts by the Department of Commerce.
  • Welfare reform. In 2012, the Obama administration waived the work requirement under the 1996 welfare reform law, deciding that a wide range of activities qualified as “work.”
  • Marijuana enforcement. Then-Deputy Attorney General James M. Cole in August 2013 announced that the Justice Department would not prosecute federal marijuana violations in states that legalize the drug.
  • Amnesty for ‘DREAMers.’ The president in 2012 declared via fiat the Deferred Action for Childhood Arrivals program, giving temporary amnesty and work permits to certain illegal immigrant children who came to the country before they were 16. The president the following year sought to provide temporary legal status to millions of illegal immigrants who are parents of legal residents and citizens, but that action has been put on hold as the courts consider it.
  • Religious freedom Part I. The Department of Health and Human Services declared that the Affordable Care Act required employers — over their deeply held religious believes — to provide coverage for sterilization, abortion-inducing drugs and birth control.
  • Religious freedom Part II. The Equal Employment Opportunity Commission took the position that the “ministerial exception” applies only to employees who are engaged exclusively in religious functions. The U.S. Supreme Court on a 9-0 vote rebuked that position in January 2012.
  • Extension of parole. The U.S. Citizenship and Immigration Services in November 2013 announced a policy providing that spouses, children, and parents of those serving in the U.S. armed forces could receive “parole-in-place” though the parole statute does not appear to apply to immigrants who are in the country illegally.
  • Mandatory-minimums. In August 2013, then-Attorney General Eric Holder announced a new policy prohibiting federal prosecutors from seeking enhancements that would trigger mandatory-minimum sentences for low-level, nonviolent offenders.
  • Nuclear waste disposal. The Nuclear Regulatory Commission in 2010 delayed a decision on a proposed nuclear storage facility in Nevada’s Yucca Mountain amid pressure from the Obama administration to kill the project. A federal appeals court in August 2013 ruled that the commission’s action violated federal law, writing, “The president may not decline to follow a statutory mandate or prohibition simply because of policy objections.”
  • Net neutrality. The Obama-appointed majority on the Federal Communications Commission tried to prohibit Internet service providers from charging different rates for usage at different times the day, or charge more for priority access to content providers. The U.S. Court of Appeals for the D.C. Circuit in January 2014 ruled that the FCC exceeded its authority.
  • War on coal — the prequel. Before this week’s executive order on power plant emissions, the EPA revoked a permit of a coal mine in West Virginia even though the company had complied with the permit requirements. The U.S. District Court in the District of Columbia overruled the EPA, ruling the agency did not have the authority under the Clean Water Act to revoke a permit issued by the Army Corps of Engineers.
  • Union elections. Obama’s appointees to the National Labor Relations Board altered the way unionization elections take place, changing a requirement that elections require a majority of employees at a facility to a majority of just those who vote.
  • Interfering with business decisions. The National Labor Relations Board in 2011 filed a complaint against Boeing Co., challenging its decision to build an aircraft assembly plant in South Carolina. The Labor Relations Board dropped the case against Boeing in December 2011 after the union that urged action, International Association of Machinists and Aerospace Workers, asked the agency to back off following a deal with the airplane manufacturer to raise wages and expand jet production at its Washington state facility.

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