Executive Fiat or Business as Usual? Claims of Presidential Overreach are Just Politics

by Bill Funk

February 17, 2014

In his State of the Union Address President Obama announced that, while he intended to work with Congress to achieve various goals, he will act unilaterally, invoking his “executive authority,” pending congressional action.  There followed a laundry list of initiatives that he said he would take on his own.  Predictably, Republicans have railed against the President’s proposed actions, accusing him of subverting the rule of law.  It’s all just politics.

First guilty party: President Obama.  For all his touted exercise of executive authority, there is nothing revolutionary there.  Most of the initiatives are simply the use of the bully pulpit to call upon various groups and constituencies to do the right thing.  For example, the White House hosting a Summit on Working Families, asking the Vice President to lead a “full review” (as opposed to a partial review, I guess) of America’s job training programs, asking every business leader to help the long-term unemployed find jobs, and mobilizing leaders from business, labor, community colleges and other training providers to boost the number of apprenticeships in this country.  Not that those are not good things, but they are hardly strong medicine.  The rest of the initiatives involve the exercise of existing, well-established statutory authorities, not the use of some free-floating constitutional “executive authority.”  For example, the first out of the box was the President’s order requiring new contracts with the federal government to establish a $10.10 minimum wage for contractor employees.  However, at least since 1979, when the D.C. Circuit upheld President Carter’s maximum wage and price controls for government contractors, it has been well established that the Federal Property and Administrative Services Act authorizes the government to dictate the wages of contractor employees.  Another announced initiative is the launching of four new manufacturing innovation institutes, but this is just the direction of the use of appropriated funds consistent with the statutory restrictions on their use.  Likewise, the so-called “myRA,” or the poor man’s IRA, is justified in reality by Treasury Department authorities regarding the sale of government bonds, and it is entirely voluntary for employers.  In other words, the President is guilty of hype – portraying himself as the sole person with the power to do these things.  It would not be nearly so dramatic if he said that he was utilizing already existing statutory authorities. 

Second guilty party – Republicans and their media megaphones.  Virtually every President in the modern age (i.e., since Herbert Hoover) has emphasized the use of executive power to push the government in the direction the President supports.  Sometimes they have gone too far, as in the Iran-Contra affair, but more often the Presidential action has either been explicitly upheld (as with President Carter’s wage and price controls) or has failed to be challenged (such as President Reagan’s initiation of OMB review of all agency regulations before they are issued).  No doubt Republicans do not like many of the Obama initiatives on the merits, but complaining that he is subverting the rule of law seems more than unfounded; it’s just politics. 

Most recently, the administration has announced what has been characterized as a further delay in the employer mandate of the Affordable Care Act.  This too Republicans have claimed is a direct violation of law.  It is a bit ironic that Republicans are complaining about a delay that House Republicans voted for less than a year ago.  But it’s not a violation of law.  Yes, the law says the mandate shall apply after December 31, 2013, but the question is whether the administration must enforce that requirement.  Again, there is ample precedent for Presidents delaying or avoiding enforcement of laws under the doctrine of prosecutorial discretion.  President Ford did it with respect to Vietnam draft evaders.  President Obama has done it earlier with respect to certain undocumented immigrants.   Moreover, the government has notoriously failed to meet or enforce statutory deadlines contained in laws for decades.  When the issue has gotten to court, the response has been to order the government to comply as soon as feasible, which in essence is what the delayed enforcement of the employer mandate is all about– putting it into effect as soon as feasible. 

Finally, the Republicans have not limited their ire to Presidential orders.  In addition they blame the President for every agency regulation they dislike.  A recent special report in Politico entitled, “Obama’s Power Play” is typical.  It blames Obama for EPA regulations addressing CO2 emissions; the Food and Drug Administration for regulating partially hydrogenated oils (PHOs) in processed foods, and the Department of Education regulating for-profit colleges.  “Congress? Who needs Congress?” it asks.  Well, you need Congress to have passed the Clean Air Act, which the Supreme Court says includes regulating CO2. You need Congress to have passed the Federal Food, Drug, and Cosmetic Act, which requires FDA regulation of unsafe food additives, (and PHOs are the primary source of trans fatty acids that independent scientific studies have found to cause health risks). And finally, you need Congress to pass Title IV of the Higher Education Act which requires the Department of Education to provide federal funding only to qualified institutions, and numerous reports have found fault with various for-profit colleges.  In short, claims of executive excess are bogus. 

Indeed, Presidents have their agendas, and President Obama’s is more progressive than that of President George W. Bush.  But when Congress passes a law and in that law grants discretion to the administration as to how to implement it, it is the law itself that authorizes an administration to pursue its agenda within the constraints of that discretion, nothing more dramatic than that.



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William Funk is the Lewis & Clark Distinguished Professor of Law at Lewis & Clark Law School in Portland, Oregon.

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