Expressing his frustration with Congress’s failure to pass his American Jobs Act and other initiatives, Obama told a Nevada audience on October 24: “We can’t wait for an increasingly dysfunctional Congress to do its job. Where they won’t act, I will.”
As The New American’s Raven Clabough reported the next day, Obama’s chosen means of circumventing the legislative process is to issue executive orders and other directives — at least one per week for the remainder of the year, aides said.
Obama’s first orders after announcing his new policy were: (1) to use Fannie Mae and Freddie Mac to enable borrowers who owe more than their houses are worth to refinance at lower interest rates; (2) to reduce the size of student loan payments; and (3) to challenge community health centers to hire veterans. Only the third, an essentially meaningless gesture, is plainly within the President’s purview. The others — particularly the first, which could put taxpayers on the hook for trillions of dollars in loan guarantees — “would generally be subjected to” congressional approval, Clabough noted.
“This isn't just a figurative slap in the face to both Congress and the rule of law; this is a kick in the groin,” asserted Mark J. Fitzgibbons at American Thinker. The President, after all, is only to “recommend to [Congress’s] consideration such measures as he shall judge necessary and expedient” and to “take care that the laws be faithfully executed,” according to Article II of the U.S. Constitution. “All legislative powers” are “vested” in Congress, says Article I. From a legal standpoint, therefore, Obama may only prod and plead with Congress to enact his agenda; he may not enact it by fiat.
Obama, however, has never been one to let the law stand in his way, as Fitzgibbons reminds us:
President Obama and his administration have engaged in years of lawbreaking. Mr. Obama unlawfully used TARP money so that the government obtained ownership interests in Chrysler and General Motors. He ignored the War Powers Act in deploying the military machine to Libya. When Congress refused to pass the DREAM Act, he implemented portions of it via executive order.
That Obama would seek to use executive orders to circumvent Congress thus comes as little surprise. “Thus far,” Clabough observed, “the President has signed nearly 100 executive orders to advance his programs, including one that established the White House Rural Council, which is designed to institute the United Nation’s [sic] sovereignty-destroying Agenda 21, and another that passed gun restrictions in border states.” USA Today adds that “Obama has used executive orders to set ethics rules, clarify labor laws, promote diversity in the workplace and discourage texting while driving. He’s also frozen foreign assets invested in the U.S. from Iran, Libya, North Korea, Somalia and Syria.” In addition, Obama and members of his administration have repeatedly mused publicly about ruling by executive order to implement various policies, including “cap and trade.”
“He’s doing something a whole sequence of presidents have done without legislative support,” Dickinson College professor Andrew Rudalevige, author of The New Imperial Presidency, told the Washington Times. “But it’s more blatant and partisan than usual with the organized roll out.”
Indeed, it is difficult to view Obama’s “We Can’t Wait” campaign as anything but a partisan, political move designed to win him reelection next year. That, in turn, has made him vulnerable to accusations of cynicism.
Columnist Steve Huntley of the Chicago Sun-Times remarked that while Obama now claims that the measures he is implementing by fiat are of the utmost urgency, “this administration let jobless Americans wait as unemployment soared while the president and Democratic majorities in Congress concentrated their efforts in 2009 and 2010 on passing the cherished liberal goal of greater government control of health care.”
“The ‘we can’t wait’ campaign slogan betrays a failure of leadership,” Huntley continued. “The job of the president is to work with Congress, not to try end runs around it through executive orders.”
Todd Gaziano of the Heritage Foundation told the Times: “If these are legal and would significantly help the economy, it raises a question about his competence for not issuing them all at once and doing it a year or two ago. It leads me to believe that these executive orders are either much more questionable legally or much less effective than they purport to be.”
Even Obama’s fans, while not questioning the legality of the approach, are wondering what took him so long. Jeff Madrick, a senior fellow of the Franklin and Eleanor Roosevelt Institute, had this to say about Obama’s assertion that “we can’t wait for Congress” to pass his jobs bill:
He is right. But where was Obama two and a half years ago when he took office? We couldn’t wait then, either. Where was he after the 2010 mid-term loss? We could not wait then, either. As I wrote in November 2010, Obama will be running for reelection with an unemployment rate no lower than 8.5 percent, maybe 8.2 percent. It will probably be higher than 8.5 percent, as it turns out. No incumbent won before with an unemployment rate above 7.2 percent. The exception is Reagan, under whom unemployment, after soaring, had fallen by three full percentage points.
Obama is clearly counting on his aggressive executive-order approach to bring the unemployment rate down — or, as the New York Times suggested, “to pressure Republicans to support” his jobs bill in hopes of increasing employment — by next November. Madrick fears that it may be too little, too late.
Congress, if it cares at all about its own prerogatives, ought to be gearing up for hearings on Obama’s openly stated policy of ignoring the Constitution. Of course, since the Senate is controlled by Democrats who are frustrated with Republican opposition that has twice stymied passage of the American Jobs Act, it is unlikely to object.
The House of Representatives is a different story. “This idea that you are just going to go around the Congress is just, it’s almost laughable,” House Speaker John Boehner told radio host Laura Ingraham. “And so we are keeping a very close eye on the administration to make sure they are following the law and following the Constitution.”
Boehner’s words would be a bit more comforting had he not in June personally engineered the defeat of legislation that would have forced an end to Obama’s blatantly unconstitutional intervention in Libya. If Boehner was unwilling to assert Congress’s primacy in a matter as vital as war and peace, how likely is he to do so when it comes to lesser matters?
Obama’s attempt to play dictator is a serious threat to the Constitution and the rule of law. But as Fitzgibbons opined, “if Congress responds weakly or passively to this kick in the groin, then they are as much the problem as Mr. Obama.”
Photo of President Obama: AP Images