What the President Can and Can’t Do: Phones and Pens and Kings

“We are not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help that they need.  I’ve got a pen, and I’ve got a phone.  And I can use that pen to sign executive orders and take executive actions and administration actions that move the ball forward in helping to make sure our kids are getting the best education possible, making sure that our businesses are getting the kind of support and help they need to grow and advance, to makes sure that people are getting the skills that they need to get those jobs that our businesses are creating.

“And I’ve got a phone that allows me to convene Americans from every walk of life…to try to bring American’s together around what I think is a unifying theme: making sure this is a country where, if you work hard, you can make it.”

“I’m against having a king…someone who wants to bypass the Constitution, bypass Congress – that’s someone who wants to act like a king or a monarch.”

Paul RandSo which quotation is from President Obama and which from Tea Party Senator Rand Paul?

Pretty obvious.  Just another day in the vitriolic gridlock of Washington. Acrimony and accusations between the Democrats and Republicans are nothing new, but the gulf between the executive and legislative branches of government has never seemed wider.  The Republican controlled House has publicly said its mission is to deny Obama any success (as opposed to serving their constituents or obeying their oath of office.)  Obama has grown increasingly disillusioned about any possibility of bipartisanship and has decided the only way to get anything done is to go it alone for the rest of his last term.   

And now the third branch, the judicial Supreme Court, will weigh in this summer on how much power the President can exercise outside of Congress.  Oral arguments were heard last week on the President’s power to make recess appointments when Congress is not in session.

Supreme Court JusticesI’m no Constitutional scholar and the topic of the balance of powers needs more than 900 words (and I only have 530 left!)  So I just did a little reading around in the history of these power struggles, and in particular the two current controversies; recess appointments and executive orders.   Here’s some background, with a few cynical comments and questions thrown in.

Recess appointments: the Constitution allows the President this exception to the required “advice and consent” by Congress on appointments to Cabinet and other government posts, probably because in the1780’s travel and communication were slow.  But it was rarely used until the past few decades, as Congress increasingly refused to confirm Presidential nominations, along party lines.  Key offices like judgeships and major departments have remained vacant for months and years.  So presidents have gotten people in place while the legislators are out of town.  Eisenhower appointed Earl Warren to the Supreme Court that way.

In the current case Congress wouldn’t vote on some pro-union nominees to the National Labor Relations Board, so Obama appointed them while Congress was on vacation, as Presidents have done for decades.  When the board started voting in favor of workers, Republicans took the administration to court, saying Obama overstepped his power. 

From the questions the conservative-dominated Supreme Court asked in the hearings, the Court might agree to limit Presidential power.  Why did this case not come to the Court during the Reagan administration, when Ronnie made over 10 times the recess appointments Obama has?

Executive Orders: In his State of the Union address last month Obama said he would act “with or without Congress.”  “Wherever and whenever I can act without legislation to expand more opportunity for more American families, that’s what I’m going to do.”   He announced that night a rise in the minimum wage for federal contractors; he can’t get Congress to even look at a minimum wage raise, but under the Constitution he can order changes in policy for the executive branch, like federal workers.

Even though the term “Executive Order” does not appear in the Constitution, Presidents since George Washington have said the Presidential job description gives them the  authority to order some policy changes unilaterally.  Only a few such orders have ever been overturned, most notably Harry Truman’s order that all the steel mills be nationalized in 1952 to avert a threatened strike.  The Court said Truman was making new laws, not executing current laws, and rescinded his order.  But Presidential orders have been the only way that some crucial national changes have been effected; in Truman’s most successful executive order he outlawed segregation in all branches of the military. Eisenhower similarly ordered that public schools be desegregated immediately following court decisions.  Earlier FDR, who issued far more executive orders than any other President, over 5000, issued an executive order that Japanese Americans be forced into internment camps.

President ObamaObama’s executive orders have not been so dramatic or controversial in content; he has ordered changes in environmental regulations, raised the minimum wage for federal contractors, streamlined trade agreements.  Well, he did order the Justice Department to stop enforcing the Defense of Marriage Act in 2010; that helped start the dramatic change in gay marriage nationwide.  But compared to other Presidents he has been restrained; Reagan issued twice as many executive orders as Obama.  As with the critique of Obama’s recess appointments, the current criticisms of the Office of the President seem unusually vicious and polarizing; calling Obama a king or imperial.

Stay tuned. Some days it feels like a chess game, strategic moves by both sides.  Other days it just seems like a farce.  Soon enough the President will become lame duck and all attention will be on who might run to succeed him.  Well, there’s already constant speculation and posturing.  But there’s still a lot of work for Obama to do.  And the Congress to try to stop.

Copyright © 2014 Deborah Streeter