Obama’s Executive Order Plans: Autocratic, Weak, or Necessary?

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“America does not stand still — and neither will I. So wherever and whenever I can take steps without legislation to expand opportunity for more American families, that’s what I’m going to do,” said President Barack Obama early in Tuesday night’s State of the Union address. In essence, that was a pledge to employ his executive powers and skirt the legislative process in order to bring economic opportunities to the middle class, a phrase that has become a tagline for the president’s second term. His words were meant to restore the American public’s confidence in his presidency after a year filled with setbacks from a political agenda that Congress has largely refused to support. But rather than addressing the polarization of Washington, he vowed to find a way around the problem.

Of course, such a pronouncement immediately sent shockwaves through the American political landscape. Obama’s critics in the Republican party saw his commitment to use his presidential powers to further his political agenda as an overstep. “Choosing to circumvent our legislative process and govern through executive power not only violates our constitutional system of checks and balances, but it poses a direct threat to our liberty,” said Oklahoma Attorney General Scott Pruitt in a statement released by the Republican Attorneys General Association.

But, White House Press Secretary Jay Carney said Monday that “any president who doesn’t take advantage of the unique powers of the presidency to move the country forward would be depriving himself or herself of the capacity to move it more forward and to grow the economy further and to create more jobs.” He also asserted that Obama would have pursued this strategy even if Democrats controlled the Congress.

To be clear, Obama made no explicit mention of executive orders in his address, but the State of the Union fact sheet released by the White House did. Under the headline, “Opportunity for All: Key Executive Actions the President Will Take in 2014,” it lists more than a dozen economic priorities for the year that the administration will implement through executive order. The scope of his agenda is modest, focusing on jobs and wages. By relying on the powers of the executive branch, the White House plans to create an affordable retirement savings account to help millions of Americans save for retirement; raise the minimum wage $10.10 per hour for federal contract workers; launch four new manufacturing innovation institutes to boost U.S. manufacturers’ competitiveness; and attract business investments in the U.S through the expansion and enhancement of the SelectUSA program.

Obama has declared that 2014 will be a “year of action,” and in a certain sense, it seems logical that he would believe the only way to make that action happen is through executive order. The ongoing War on Terror has given the executive branch a manner of freedom to make policy regarding national security. During Obama’s presidency, it has been argued that the executive branch has bypassed both Congress and the courts in the areas of national security and mass surveillance on several occasions. All this is to say that the necessities of wartime have given Obama, like many presidents before him, a basis to extend his executive powers.

Meanwhile, Congress and Obama have been at loggerheads over the president’s domestic agenda if the shutdown of the federal government last October is any example. During his 2013 State of the Union address, he proclaimed that, “If Congress won’t act soon to protect future generations, I will,” speaking with respect to climate change. But Congress did not pass any climate change legislation. Furthermore, attempts at solving other key domestic issues that he laid out last year — including reducing gun violence and immigration reform — have not progressed as Congress has become increasingly polarized. Now, the United States Congress is more polarized than at any other time since the late 19th century.

Still, his proposals are pretty innocuous and the use of executive orders to propel domestic changes are not all that unprecedented. Obama’s use of presidential power has been far more restrained than his immediate predecessors — George W. Bush made 291 executive orders and Bill Clinton made 364. Clinton even issued executive orders at a lower annual rate than Eisenhower, Ford, or Reagan. Executive authority has also led to some of the most significant changes ever experienced by the United States. The Emancipation Proclamation — which freed slaves in the rebelling Southern states and made the eradication of slavery an explicit war goal — was an executive order issued by President Abraham Lincoln on January 1, 1863. The New Deal, a series of domestic programs enacted during the Great Depression, was brought about by a series laws passed by Congress as well as presidential executive orders made by Franklin D. Roosevelt.

To Norm Ornstein, a scholar at the conservative think tank the American Enterprise Institute, Obama’s use of executive orders appears to be a last-ditch attempt to push his agenda forward. He told CBS News that, “[If] the only things Obama can accomplish are done through executive authority, it’s a pretty diluted set of accomplishments.” However, he also noted that, “The public doesn’t care much who gets things done — what they care about is whether the things get done, and whether they work well for them.” Plus, as C. Boyden Gray, former White House Counsel under President George H.W. Bush, told the publication, “The court system is likely to serve as the natural check to Mr. Obama’s attempts to maximize his executive authority, until the balance of power between the three branches of government shifts again.”

It also should be noted that in his address Obama prefaced his commitment to action by saying that, “I’m eager to work with all of you,” referring to Congress. But when partisan fighting “prevents us from carrying out even the most basic functions of our democracy — when our differences shut down government or threaten the full faith and credit of the United States — then we are not doing right by the American people,” Obama added.

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