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Commands & control

Concerns over executive orders grow as President Obama tries to implement parts of his jobs bill without congressional approval

Issue: "2012: The Year Ahead," Jan. 14, 2012

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."

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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.

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