Obama’s executive actions rejuvenate legal battles

A look at the balance of power in the battle over presidential powers


By Richard Wolf


WASHINGTON — President Obama’s effort to advance many of his policies through executive actions this year won’t end the political and ideological battles with opponents. They simply will move from Congress to the courts. Here’s a look at how the legal skirmish shapes up:


The policies: The president’s focus is on three areas — jobs, education and the environment. This week he directed federal agencies not to discriminate against unemployed job candidates; put Vice President Biden in charge of a sweeping review of federal job training programs; and announced new minimum wage rates for federal contract employees. There will be more to come.


“Wherever and whenever I can take steps without legislation to expand opportunity for more American families, that’s what I’m going to do,” Obama said.


The legal questions: Some initiatives fit easily into executive branch prerogatives. But Article I, Section 1 of the Constitution clearly gives Congress all legislative powers, so the White House must be careful not to overstep its bounds. That why the minimum wage requirement will be issued only for new, not existing, federal service contracts.


Executive orders aren’t defined in the Constitution, but a House committee in 1957 said they “may have the force and effect of law” when founded on the president’s constitutional or statutory authority.


“The president gets to execute the law. He doesn’t get to unilaterally make law,” says John Eastman, a law professor and former dean at Chapman University School of Law in California.


What’s the beef? Republicans say many actions previously taken by the president went too far by usurping the powers of Congress. Their prime example: His decision to delay for a year the new health care law’s requirement that employers with more than 50 workers offer insurance coverage or pay a penalty. That and other actions on issues ranging from immigration to greenhouse gases are being challenged in court.


“These are all things that fall under executive overreach,” says Curt Levey, president of the conservative Committee for Justice. “It’s scary how much the president is openly talking about bypassing Congress, and in many cases doing it.”


Not so, says Simon Lazarus, senior counsel at the liberal Constitutional Accountability Center. Obama, he says, “isn’t really rubbing up against any legal boundaries.”


What’s the defense? The Justice Department reviews all executive actions before they are taken and renders a decision on their legality. Delaying the employer mandate, for instance, was deemed to be within his authority in carrying out a law passed by Congress.


“An analysis is done to make sure that the president is acting in an appropriate and a constitutional way,” Attorney General Eric Holder told the Senate Judiciary Committee on Wednesday, a day after Obama’s State of the Union address. “He will only do so … where he is unable to work with Congress to do things together.”


Are executive orders effective? Not nearly as much as legislation. Unlike acts of Congress, executive actions cannot appropriate money. And they can be wiped off the books by courts, Congress or the next president.


On the day after Obama was inaugurated, he revoked one of George W. Bush’s executive orders limiting access to presidential records. The next day, he signed an executive order calling for the Guantanamo Bay military detention facility in Cuba to be closed within a year. It remains open today.


This sounds like deja vu all over again. That’s because it is. In 2011, the first year he was dealing with a Republican-controlled House, Obama vowed to “look every single day to figure out what we can do without Congress.” With lawmakers blocking his $447 billion jobs bill, his mantra became, “We can’t wait.”


During a single three-day Western trip that October, for instance, the president announced initiatives to help 1.6 million college students repay their federal loans, 1 million homeowners meet their mortgage payments and 8,000 veterans find jobs.


Is this the only balance-of-powers fight? Nope. The Supreme Court is considering a momentous one that could define a president’s power to make so-called recess appointments. The question is whether Obama had the right to fill administration positions without seeking confirmation while the Senate was holding pro-forma sessions every three days.


That argument will be difficult for the president to win, but it doesn’t matter as much because of another power grab. Democrats changed the Senate rules last year to prevent Republicans from blocking Obama’s nominees through filibusters. As a result, he has filled several key administration posts as well as three seats on the U.S. Court of Appeals for the D.C. Circuit.


What can conservatives do to stop him? They can go to court, but even getting there can be difficult. While the case against Obama’s recess appointments is strong, it’s hard to find plaintiffs with standing to mount a court challenge against some of his other executive actions.


“Ultimately, this does go to the people,” says Ilya Shapiro, a constitutional studies expert at the libertarian Cato Institute. “It’s a political decision that the voters will have to make.”


Is Obama the worst offender? Not by any stretch of the imagination. He has issued 168 executive orders in five years — the slowest pace since Grover Cleveland was in the White House. George W. Bush issued 291, Bill Clinton 364 and Ronald Reagan 381. Four presidents topped 1,000, led by Franklin Roosevelt’s 3,522.


Republicans claim the nature, if not the number, of Obama’s actions have been more significant. But Abraham Lincoln suspended the writ of habeas corpus during the Civil War. Theodore Roosevelt protected 130 million acres of land and created five national parks. Franklin Roosevelt established internment camps during World War II. And Gerald Ford used a presidential proclamation to pardon Richard Nixon in 1974.


Have presidents ever been stopped? Yes. Harry Truman’s federal seizure of steel mills was invalidated by the Supreme Court. George H.W. Bush’s establishment of a limited fetal tissue bank was blocked by Congress. Bill Clinton’s effort to stop federal agencies from contracting with employers that permanently replaced striking workers was struck down by a federal appeals court.


Obama recognizes the delicate balance that must be struck, as he noted in November when responding to hecklers seeking an executive order to stop deportations of illegal immigrants.


“That’s not how it works. We got this Constitution. We got this whole thing about separation of powers and branches,” he said. “There is no shortcut to politics. And there’s no shortcut to democracy. And we have to win on the merits of the argument with the American people.”