Cover Story

Commands & control

"Commands & control" Continued...

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

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 Two of Obama's earliest executive orders in 2009 rescinded George W. Bush's executive orders banning the federal funding of both embryonic stem-cell research and clinics that performed abortions overseas.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.'"

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