Obama Picks Up Pace of Executive Actions

Obama Picks Up Pace of Executive Actions
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As President Obama toured Vietnam Tuesday and boasted about his ability to “get a lot of things done” at home, despite what he described as Congress’s reluctance to “work effectively,” House Republicans were complaining that his administration has been doing too much without the legislative branch.

During the start of a weeklong trip to Asia Monday, the president lifted a long ban on U.S. military sales to Vietnam, and without insisting on human rights improvements sought by some lawmakers. But on Capitol Hill the next day, some House Judiciary Committee conservatives were more focused on the administration’s May 13 “guidance” to schools. That determination advised that transgender students are protected by federal law when students choose restrooms in sync with their gender identities.

“The president now uses more executive memoranda and blog posts for major policy shifts,” Iowa Rep. Steve King complained during the fifth in a series of  “executive overreach” task force hearings devoted to election-season critiques of administration actions.

Republicans accuse Obama of exceeding his constitutional authority by protecting undocumented immigrants from deportation, circumventing legislative intent with Affordable Care Act requirements, inventing environmental mandates tied to climate change using the Clean Air Act, and entering into international pacts without approval from Congress.

King described as “egregious” the government’s new transgender instructions to public schools, issued by the departments of Justice and Education on the basis of recent court decisions, using as leverage federal funding under provisions of a 1972 anti-sex-discrimination law. The congressman fumed that schools are obligated to “let anatomical boys use facilities formally reserved for anatomical girls” under a definition of sex discrimination that he said did not exist and was never contemplated by Congress 44 years ago. Apparently, at least 11 states agree: That many have filed suit against the administration over the guidance.

Obama, who does not mince words when it comes to stalemates with the Republican-controlled Congress, had hoped to enact a criminal justice reform bill this year and get the completed Trans-Pacific Partnership trade agreement through Congress before the next president is inaugurated. Filling a Supreme Court vacancy with nominee Merrick Garland, a third goal listed by the White House, appears politically unpalatable among Senate Republicans, despite previous GOP votes for the esteemed judge.

Even as the president deploys his executive weaponry with all deliberate speed, to the consternation of ideological opponents, he publicly bemoaned infighting and divisions that infuriate voters, encourage a surge of independents and Election Day no-shows, and stir distrust in government and other institutions.

In his storytelling, members of Congress live in fear of breaking with orthodoxy and losing their seats, while Obama insists he’s eager to exert his power to fill the  resulting vacuum.

“Part of the reason we've seen polarization and gridlock here in Washington,” Obama told an audience last month, “is because there's been this great sorting, and Democrats have moved much further -- have moved left. Republicans have just gone way to the right. And it's harder, then, to compromise because members of Congress -- and the same thing is true in state legislatures -- are always looking over their shoulder seeing if somebody in their own party might challenge them. And then the system doesn't work.”

Some analysts believe the president is so practiced at governing incrementally and largely without congressional collaboration that he’s more than willing to make a bad relationship worse.

“If the chances of getting something passed are right around zero anyway, angering the House won’t make that likelihood any less,” said Andrew Rudalevige, Bowdoin College professor of government and author of "The New Imperial Presidency: Renewing Presidential Power After Watergate.”

 “I think at this point, and maybe as long ago as the failed ‘grand bargain’ [budget] negotiations of summer 2011, Obama has decided that Congress isn’t going to do anything useful from his perspective.”

With the clock ticking, the president and his Cabinet team are testing the boundaries of what can be changed before January without Congress. If there is a strategy, it’s in service to the Obama record, which would also be greatly enhanced if a Democrat wins the White House in November. Whether those aims can be reached is a topic of heated discussion. Nevertheless, by relying on executive decisions both major and minor, Obama hopes to paint government as a tool for good, and to draw sharp contrasts with Republicans (the contrast is a partial explanation for the president’s higher job approval poll numbers.)

In addition to arms sales to Vietnam, a nuclear pact with Iran and the end of half a century of U.S. isolation of Cuba, plus transgender bathrooms, Obama last week made more than 4 million salaried workers eligible for overtime pay under a Department of Labor update pegged to existing law. The administration hopes to breathe life into middle-class wages, and believes the overtime pay policy can survive Obama’s term.

“The legal foundation for making this argument is solid,” White House Press Secretary Josh Earnest told reporters. “The next president will have to make their own choices with regard to … executive action. That's true on a whole range of things.” 

The political arguments seem plain: Expanding overtime pay and advocating a higher federal minimum wage, now $7.25 an hour, are economic battle cries for the administration. Hillary Clinton and Bernie Sanders, competing for the Democratic nomination, largely agree on those themes. The unspoken dare to Republicans in Congress -- and to presumptive GOP nominee Donald Trump -- is whether conservatives, sympathetic to complaints from small businesses and corporations about evaporating profits, will attempt to persuade low- and middle-income voters this year that they don’t deserve a raise.

With the economy and consumers in mind, Obama recently championed a consumer-friendly Department of Labor requirement that says investment advisers must eliminate conflicts of interest and prioritize their clients’ financial goals when recommending where to put their money. And in April, the Treasury Department took additional steps to make it harder for U.S. companies to exploit legal loopholes to merge with corporations abroad as a means to lower taxes and maximize revenues. That announcement scuttled a proposed merger between pharmaceutical giant Pfizer and Dublin-based Allergan.

Obama has also tapped his constitutional leeway to show mercy, boasting that he has curtailed more prison sentences, about 300, than the last six presidents combined. His decisions to commute lengthy sentences for those he describes as nonviolent drug offenders is also a way to affirm a sympathetic narrative to encourage Congress to adopt a criminal justice measure this year that would overhaul policies adopted in the 1990s.

Because there is bipartisan interest in criminal justice reform, the reliance on executive action to encourage Congress and provide some public cover for a shared goal may be something of an exception as Obama takes action.

“The pace is accelerating,” said William Galston, a former policy adviser to President Clinton and a senior fellow in governance studies at the Brookings Institution. “The [reliance on] executive action is not so much an invitation to Congress to act as much as an admission that Congress will not act. I don’t think the president really expects any legislative response.”

Scholars and the courts are debating the effects of Obama’s executive choices, as are lawmakers. So too are the presidential candidates, who have pledged to take bold steps by executive fiat if Congress isn’t cooperative. Clinton said she’d go around Congress to stop corporate tax inversions by rulemaking, tackle gun safety without legislation, if necessary, and go beyond Obama on immigration policy.

Trump, the only businessman in the race, suggested Obama’s executive efforts could be emulated.

During an interview early this year on NBC’s “Meet the Press,” Trump was asked if he’d use executive orders to work around Congress.

“I won’t refuse it. I’m going to do a lot of things,” he said, with a nod to Obama.

“I mean, he’s led the way, to be honest with you.”

Alexis Simendinger covers the White House for RealClearPolitics. She can be reached at asimendinger@realclearpolitics.com.  Follow her on Twitter @ASimendinger.

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