Obama’s “Executive Action” Offensive Continues

Thursday, August 28, 2014
By: RJC Communications Director Shari Hillman

“I’ve got a pen and a phone.”

President Obama spoke these words at the start of his first Cabinet meeting in January 2014 and promised to take executive action wherever possible to “move the ball forward” on his liberal agenda if Congress did not enact the laws he sought. That is one promise he has kept.

Some of his earlier unilateral moves have been widely discussed already. President Obama ordered delays and changes to the implementation of Obamacare, rewriting the law over time. He made recess appointments to the National Labor Relations Board when the Senate was not actually in recess (a move the Supreme Court over- turned in June). The Obama Education Department granted states waivers from the requirements of the No Child Left Behind Act if and only if they would instead implement standards put in place by the Obama administration without congressional authorization. When President Obama decided to bring Bowe Bergdahl home, he released five top Taliban terrorists from the prison at Guantanamo Bay without notifying Congress thirty days in advance, as required by law.

Now President Obama has extended – or proposed extending - his executive actions to other policy areas when the legitimate law-making institution, the legislative branch, has not acted as he wished.

One such area is immigration. In 2012 the President issued a memorandum laying out his Deferred Action on Childhood Arrivals (DACA) policy. DACA implemented some provisions of the DREAM Act, a bill that Congress did not pass, and gives protection from deportation to certain illegal immigrants. This policy is widely blamed for the surge of some 57,000 unaccompanied minors that have crossed over our southern border since October 2013. After a period of denial, even the Obama administration now acknowledges that the surge was fueled by perceptions among Central Ameri- cans that children brought into the U.S. illegally would be allowed to stay under DACA.

The President has hinted that he will take further action on immigration without congressional approval before the end of the summer. He could expand the group of illegal immigrants shielded from deportation to include the parents of children covered by DACA and perhaps their siblings as well. This could raise the number of people who could not be deported from 500,000 to 5 million (of the estimated 11 million illegal immigrants currently facing deportation from the U.S.) The President could also expand the pool of illegal immigrants allowed to stay in this country by instructing U.S. prosecutors to focus on deporting only those with ties to organized crime or who have been convicted of a serious crime.

This summer the Environmental Protection Agency proposed a rule that would force U.S. power plants to cut their carbon emissions by 25% by 2020. This will significantly affect 1,600 power plants across the country. It will hit the 600 coal- fired plants the hardest, causing many to shut down. The U.S. Chamber of Commerce studied this rule and found that it would cause serious economic damage, including the loss of 200,000 jobs per year and the loss of as much as $51 billion in annual GDP. Electricity prices for consumers and businesses would skyrocket. Congress has repeatedly rejected cap-and-trade legislation to cut power plants’ carbon emissions, including during the years when both chambers of Congress had large Democrat majorities. So the President is pursuing regulations to produce the same outcome.

The New York Times has reported that the Obama administration is considering a plan to curtail tax benefits for certain U.S. companies that do business overseas. The U.S. has the highest corporate tax rates in the developed world. Some companies are re-incorporating overseas (called a corporate inversion) to minimize those high taxes. Regardless of whether one thinks this aspect of the tax code should be changed, revising the tax code is the responsibility of Congress.

These executive actions are not simply selective enforcement of existing laws, they are actions taken outside of the law. President Obama is carving out his own policies as if Congress were irrelevant, instead of working with Congress on issues like immigration or accepting that some of his policies, such as his limits on carbon emissions, do not have the approval of the American people and their elected representatives. Despite many rebuffs in the courts, the President appears determined to continue shoving aside the constitutional barriers that limit executive action in order to achieve his policy goals.

Ironically, the President could gain some political benefits from his high-handed governance. First, he satisfies his most left-wing supporters by pushing through policies for open borders, carbon emissions limits, and so on. But the very lawlessness of his actions also helps him, as Yuval Levin has pointed out. Obama takes unilateral action on a controversial issue that elicits a sharp response from his opponents. He uses that response to scare his base into thinking that they are under attack, when in fact he is the one acting aggressively. The President and his partisan allies are betting that the Democratic fundraising machine and voter turnout machine will get a boost from the President’s latest insults to the Constitution.

This article appeared in the July-August 2014 issue of the RJC Bulletin, our bi-monthly newsletter for contributing RJC members who are current in their dues. To receive the Bulletin, please make your membership contribution or renew your membership here.