By Ben Goad - 02/17/14 06:00 AM EST
President Obama's aggressive use of administrative power is testing the boundaries of executive authority on several fronts.
Obama throughout his presidency has pushed the envelope on recess appointments, prosecutorial discretion and the way his administration executes laws, drawing resistance from the other two branches of government.
Experts say Obama's tactics are not unusual and note that he has issued fewer executive orders than many of his predecessors. But Congressional Republicans counter that it is the content, not the number, of presidential directives that has them up in arms.
“I think leadership is coming to the conclusion that they cannot sit idly by while the president makes this enormous power grab,” said Rep. Tom Rice, a South Carolina Republican urging the House to file a lawsuit over various executive actions. “He’s actually shredding the constitution.”
Obama has made clear his intent to use every tool at his disposal to further policy goals in lieu of action from a bitterly divided Congress, pledging in last month’s state of the union to use his “pen” wherever necessary.
In remarks Friday at House Democrats’ annual retreat, Obama said he would prefer to work with Congress than act unilaterally.
“But, I'm not going to wait, because there's too much to do,” he said. “And America does not believe in standing still.”
In recent days, Obama signed an executive order effectively raising the minimum wage for employees of federal contractors, while his administration extended additional legal rights to same sex couples and issued new banking guidelines for legal pot businesses, among other contentious actions.
“All modern presidents have done this,” said Kenneth Mayer, a University of Wisconsin political science professor who has studied the presidency extensively. “All presidents utilize the tools of executive power to implement policies.”
To be sure, Obama is not the first president to be accused of overstepping the bounds of his authority – a point emphasized Friday by White House press secretary Jay Carney, who said, “it is funny to hear Republicans get upset about the suggestion the president might use legally available authorities … when, obviously, they supported a president who used executive authorities quite widely.”
But the same point could be made in reverse. President George W. Bush faced an onslaught of criticism from Democrats in response to “signing statements” used to expound his administration’s interpretations of hundreds of laws passed by Congress.
Sen. Patrick Leahy (D-Vt.), for instance, accused the Bush White House in 2006 of cultivating “an insidious brand of unilateralism that regularly crosses into an arrogance of power."
Even then-Sen. Barack Obama criticized Bush’s executive actions in 2007, in the midst of his successful presidential run.
"I will not use signing statements to nullify or undermine congressional instructions as enacted into law,” he pledged.
Obama has signed roughly 170 executive orders to date, according to records kept by the National Archives and published in the Federal Register. That puts him on pace to sign fewer than any two-term president in a century.
By comparison, President George W. Bush issues 291 executive orders, while President Bill Clinton signed 364, according to The American Presidency Project, an undertaking by the University of California, Santa Barbara. All of them combined fall well short of the high water mark set by President Franklin D. Roosevelt, who issued a whopping 3,522 executive orders.
But formal executive orders are but one of the mechanisms through which presidents can exert power. Obama’s administration has also flexed its muscle through less formal policy announcements and regulatory powers.
Mayer, whose book, “With the Stroke of a Pen,” analyzed executive power, said Obama has tested the boundaries of his power by claiming authority to target Americans with overseas drone strikes and halting the deportations of hundreds of thousands of undocumented immigrants.
Obama came under fire on Monday when the Treasury Department revealed it was delaying enactment of ObamaCare’s employer mandate for certain mid-sized companies for the second time, meaning they would have an additional year to offer health care to their workers or pay penalties.
The move sparked fresh outrage from the president’s critics. Though they oppose the mandate, and the law for that matter, Obama’s political rivals argue that he cannot simply pick and choose which parts of the law to enforce.
“It’s a disturbing attitude, I’d say,” Sen. Chuck Grassley (R-Iowa) told The Hill.
Upon announcing the delay, a senior Treasury Department official said the administration has discretion under the law to delay the provision.
Timothy Jost, a law professor at Washington and Lee University and a strong supporter of the healthcare law, argued that presidential administrations commonly extend compliance deadlines, particularly for sweeping and complex laws such as the Affordable Care Act.
Republican administrations, he said, presided over similar delays in the execution of laws approved by Congress.
“This is not anything new – it’s just now the shoe’s on the other foot,” Jost said. “I think they’re taking a reasonable approach and I think there’s a legal basis for what they’re doing.”
Earlier this month, Grassley asked Obama’s Justice Department to provide by Friday its legal defense for president Obama’s executive actions.
As of late Friday, there had been no response.
“We get these opinions from the courts,” Grassley said. “Why can’t we get a legal opinion from the attorney general?”
In the House, Rice is leading a more aggressive rebuke to Obama’s executive power play. His "Stop This Overreaching Presidency" Resolution directing the House to file a federal lawsuit challenging four executive actions has attracted more than 100 co-sponsors.
The suit would challenge the employer mandate delay and the 2011 decision to stop certain deportations after the DREAM Act failed to gain traction in Congress. Also targeted are the extension of "substandard" insurance policies that would otherwise have been canceled under the Affordable Care Act, and a waiver of welfare work requirements under the Temporary Assistance for Needy Families program.
Before hearing the case, a court would have to find that the House has standing to sue over the actions. A Congressional Research Service analysis conducted for Rice late last year found that that such a suit might clear that hurdle.
“It appears likely that a one-house resolution specifically authorizing such judicial recourse would satisfy this authorization requirement,” the nonpartisan CRS concluded.
Regardless of the fate of that measure, the courts will be the final arbiter of whether Obama’s actions have exceeded the power of his office. The Supreme Court, for example, is now weighing the constitutionality of a trio of recess appointments Obama made to the National Labor Relations Board when the Senate said it was in recess.
If allowed to stand, the appointments would help cement presidential authority to fill key agency posts and install federal judges without Senate backing, a result that observers say would tip scales of federal power toward the executive branch.
However, in arguments before the high court last month, nearly every justice signaled questioned the legality of the appointments.
“The history is entirely on the Senate's side, not your side,” Justice Elena Kagan, herself an Obama appointee and part of the court's liberal wing, told the government’s attorney, Solicitor General Donald B. Verrilli.