WASHINGTON-"We decided to take matters into our own hands."
That's the message President Barack Obama is taking across the country this fall. Unable to prod Capitol Hill-even the Democratic-controlled Senate-to enact his $447 billion jobs bill, Obama shifted his attention to the American people. His message is persistent and blunt: If Congress won't pass what Obama thinks are the best prescriptions for the nation's dour economy, then he will do it himself.
In Denver on Oct. 26, Obama said, "We can't wait for Congress to do its job. So where they won't act, I will." And in Yeadon, Pa., on Nov. 8, Obama pledged that, with his agenda stalled in Congress, "We decided to take matters into our own hands. I'm going to move ahead without them. I told my administration I want you to keep on looking for actions that we can take without Congress."
The actions White House officials have found? Executive orders. On a weekly basis this fall the White House, using the slogan "We Can't Wait" in its press releases, is unveiling numerous executive orders that bypass Congress to implement economic policy.
These directives, many taken straight from Obama's faltering jobs bill, touch on a wide range of domestic issues, including changes to the student loan and home mortgage processes, the reworking of business tax breaks, $1 billion to expand the healthcare workforce, and orders to step up the Food and Drug Administration's investigations of the pharmaceutical market. For example, Obama's mortgage order expanded the powers of Fannie Mae and Freddie Mac, two entities that many blame for the housing crisis.
This flood has occurred without negotiations with Congress and amid concerns about its constitutional authority, but the White House insists that Obama is doing nothing wrong: "He's not pulling pieces out and making them law by fiat," White House Press Secretary Jay Carney told reporters. "I'm sure he wishes he could do that."
Presidents since George Washington have issued executive orders, an avenue of presidential powers not explicitly defined in the Constitution and often ignored by the public. Traditionally, presidents have used executive orders to help direct federal agencies in complying with congressional laws. Beyond this administrative function, executive orders also serve symbolic purposes such as lowering flags to half mast or creating a new military medal.
Fifty-five percent of all executive orders have been issued since 1933. Franklin D. Roosevelt tops all presidents, having issued more than 3,400. Gerald Ford, who succeeded Richard Nixon after his use of executive orders in the White House led to claims of an imperial presidency, issued the least with 168, but he was president for only two-and-a-half years. George W. Bush issued 291 in eight years, while Bill Clinton issued 364.
The total in U.S. history, as of Nov. 21, was 13,588. A few executive orders, particularly in wartime, have been controversial. During the Civil War, Abraham Lincoln used an executive order to suspend the writ of habeas corpus that protects citizens against unlawful detention. During World War II, Franklin D. Roosevelt used an executive order to create internment camps for Japanese Americans. Presidents occasionally used executive orders to push for social change: Harry Truman issued an executive order to desegregate the Army, and Dwight Eisenhower used one to desegregate schools.
Obama issued only 100 executive orders through Nov. 21, but his boldness has made this fall flurry of orders different from those issued by Obama's predecessors. Phil Kerpen of Americans for Prosperity said, "We've never seen a president turn sidestepping Congress into a political virtue." Conservatives are concerned that Obama's latest spate of executive orders veers dangerously close to usurping powers from Congress, especially since some of these domestic policy orders involve untying the federal purse strings.
Article I of the Constitution gives Congress control over taxes and spending. "To me, 'we cant wait' means we can't wait for the process that the framers of the Constitution set forth," said Colin Hanna of Let Freedom Ring, a nonprofit group that promotes constitutional government. "We can't wait for this messy process that the framers designed to grind its way through." Adam Warber, a Clemson University political scientist and author of Executive Orders and the Modern Presidency: Legislating from the Oval Office, said the evolution of executive orders is an example of "someone with power trying to find ways to increase their power."
Some observers suspect that Obama's executive orders are part of his reelection strategy, meant to create a contrast between himself and what he calls a do-nothing Congress. Obama may be using Roosevelt's economic and political playbook: The Depression-era president used some executive orders to jump-start his New Deal program. Obama, like Roosevelt, believes government expansion is the best antidote for economic strife.
An executive order can be overturned in several ways: A president can reverse his own order, another president can revoke it, or Congress can pass a law overruling the order. Two of Obama's earliest executive orders in 2009 rescinded George W. Bush's executive orders banning the federal funding of both embryonic stem-cell research and clinics that performed abortions overseas. The next pro-life president likely will overturn Obama's orders that now permit these activities.
Also, courts can overturn an executive order by declaring it unconstitutional-but Clemson's Warber said examples of a court striking down an executive order are rare. The Supreme Court in 1952 overturned Truman's order authorizing the seizure of steel mills during a series of strikes. In 1996, the court nullified a Bill Clinton order, issued as a nod to his union supporters, that barred the government from contracting with organizations employing strikebreakers.
Republicans in Congress are pledging to scrutinize Obama's orders. House Speaker John Boehner said on the Laura Ingraham radio program, "We are keeping a very close eye on the administration to make sure they are following the law and following the Constitution." Many observers, though, see such promises as political theater on the order of Obama's "we can't wait" motto. Congress tends to be passive when it comes to challenging presidential power: Lawmakers may hold hearings about executive overreach, but they rarely take the next step of formally challenging the orders.
Todd Gaziano of the Heritage Foundation's Center for Legal and Judicial Studies blames this on lawmaker reluctance to be more accountable with legislation. He says Congress prefers passing laws that are broadly interpreted and grant wide authority to the executive branch: "That way they can get political credit for doing something but also be able to avoid the blame for the specifics if things go wrong. They can blame any failure on the federal regulators and their bureaucracy." In the face of such legislative chicanery, Americans for Prosperity's Kerpen says that presidents continue to centralize power in the executive branch: "We need to get citizens involved who will elect lawmakers who will fight to restore power back to Congress and pass specific legislation."
This leeway has allowed Obama to act aggressively. Congress rejected Democrats' cap-and-trade energy legislation, but the Environmental Protection Agency is busy writing regulations incorporating elements of the defeated bill. Congress defeated pro-union card-check legislation, but the National Labor Relations Board and the Department of Labor are issuing rules incorporating parts of what lost. Net-neutrality regulation failed to receive majority support in Congress, but the Federal Communications Commission voted to impose it.
Congress has declined to halt this encroachment: Last month the Senate, in a party-line vote, rejected an effort to override the FCC's decision to enhance its own regulatory powers over the internet. But the private sector has not been as willing as Congress to let the executive branch run free. Verizon Communications has filed a complaint in court against the FCC's new authority. Numerous states and utilities are suing the EPA over its new regulations. The U.S. Chamber of Commerce and the South Carolina Chamber of Commerce have brought a lawsuit against the NLRB's new rule requiring businesses to post notices explaining employees' rights to unionize.
Undaunted, Obama in a Sept. 15 speech to the Congressional Hispanic Caucus Institute was forthright in his goals: "Until Nancy Pelosi is speaker again, I'd like to work my way around Congress."
Ironically, Obama during the 2008 campaign accused George W. Bush of abusing his executive power. A former constitutional law professor, Obama took exception to Bush's use of another traditional presidential power: signing statements. Such statements accompanying a bill usually clarify a president's understanding of that law and how it will be enforced. Obama, in a 2008 comment to the Houston Chronicle, said Bush mistreated this power by using it "as an end run around Congress' legislative intent." Obama at the time pledged he would not use signing statements to undermine congressional instructions enacted into law.
Yet this April, as Washington tried to avert a federal government shutdown, Obama issued his own signing statement. It said he would disregard a provision in Congress' short-term budget that blocked funding for four White House policy advisors, known as czars for their ability to oversee major policy initiatives without congressional oversight. "It is brazenly running roughshod over the constitutional limits on his authority," said Ken Klukowski of the Center for Religious Liberty at the Family Research Council. "His 'we can't wait,' is code for 'I know better.'"
Executive orders aren't always orders, though. Just two days after taking office in January 2009, Obama ordered the detention camp in Guantanamo Bay to be closed in one year: During the campaign he had called the center's use a "sad chapter in American history." Nearly three years and numerous classified presidential intelligence briefings later, the camp remains open.