Enforcer in Chief Must Reach Far Beyond the Power of the Pen

Obama’s phone calls and executive orders won’t move the nation. But legislation will.

WASHINGTON, DC - AUGUST 31: In this handout provided by the White House, U.S. President Barack Obama (L) talks on the phone with Speaker of the House Boehner as Vice President Joe Biden listens in the Oval Office of the White House August 31, 2013 in Washington, DC. Obama stated that he will seek Congressional authorization for the U.S. to take military action following the alleged Sarin nerve gas used in an attack on Syrian civilians. 
National Journal
Major Garrett
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Major Garrett
Jan. 28, 2014, 6:39 p.m.

Pres­id­ent Obama has dis­covered the lim­its of his phone and pen, and he un­con­sciously re­vealed them dur­ing his State of the Uni­on ad­dress.

Obama had earli­er used the phone to lobby top cor­por­ate CEOs to pledge not to dis­crim­in­ate against the long-term un­em­ployed. This he did as part of what he calls the “con­ven­ing” powers of the pres­id­ency — the abil­ity to have your calls answered by any­one and per­suade them to take col­lect­ive ac­tion. That’s on the puny scale of pres­id­en­tial powers but, for reas­ons known only to Obama, holds spe­cial al­lure just now. Obama will build on Tues­day’s rhet­or­ic with a Fri­day event high­light­ing cor­por­ate com­mit­ments.

Can the pres­id­ent have for­got­ten he already used more-tra­di­tion­al pres­id­en­tial powers — sign­ing le­gis­la­tion — to ad­dress this is­sue? He signed a 2011 bill provid­ing tax breaks to com­pan­ies that hired un­em­ployed and dis­abled vet­er­ans and 2010 le­gis­la­tion that cut payroll taxes for com­pan­ies that hired the un­em­ployed. Obama has thus shelved real power, that which lies in le­gis­lat­ing, and op­ted for a the­at­ric­al ges­ture of an un­en­force­able pledge from cor­por­ate Amer­ica. When I asked White House seni­or ad­viser Dan Pfeif­fer about us­ing words in­stead of le­gis­la­tion to help the long-term un­em­ployed, he said pub­lic pledges res­on­ate.

“When com­pan­ies come to the White House and say to the en­tire world that they’re go­ing to do this, that is a very real com­mit­ment,” Pfeif­fer said.

And about set­tling for pledges in­stead of new le­gis­la­tion?

“This builds on that, be­cause we have helped some people; we need to help more by get­ting some of the largest cor­por­a­tions in this coun­try, many mem­bers of the For­tune 100, com­mit­ting to ad­opt a new set of policies that will en­sure that more work­ers get hired. It’s real pro­gress.”

Provided the pledge con­forms with the un­der­ly­ing eco­nom­ics of profit, wages, pro­ductiv­ity, in­vest­ment, and busi­ness ex­pan­sion. Ad­min­is­tra­tion of­fi­cials don’t deny that pledges alone can’t over­come any of these fickle little real­it­ies. If the eco­nom­ics al­low, work­ers will be hired. That was true Monday. It will be true today. Pledge or no pledge, and con­ven­ing au­thor­ity not­with­stand­ing.

As for the pen, it, too, has lim­its, as was pain­fully evid­ent when the White House sought head­lines for an ex­ec­ut­ive or­der Obama in­tends to sign re­quir­ing a $10.10 wage for fed­er­al con­tract work­ers. After re­leas­ing the news, of­fi­cials ad­mit­ted Obama hadn’t yet signed the or­der and could of­fer no clue when he would, ad­mit­ting that the pen stroke could be weeks or even months away. Talk about de­cis­ive.

The spe­cif­ics re­vealed that the or­der would ap­ply only to fu­ture fed­er­al con­tracts. That means no pay raise for work­ers un­der ex­ist­ing con­tracts, cold com­fort to those who have re­cently gone on strike at the Pentagon and the Smith­so­ni­an to protest low wages. The White House could of­fer no im­me­di­ate es­tim­ates of how many work­ers would be­ne­fit from the soon-to-be-signed ex­ec­ut­ive or­der.

The an­nounce­ment eli­cited grudging praise from pro­gress­ives who lob­bied the White House to raise the wages of cur­rent fed­er­al con­tract work­ers. Jim Dean, chair­man of Demo­cracy for Amer­ica, offered the clichéd and wil­ted praise of dis­ap­point­ment, call­ing the ex­ec­ut­ive or­der “a step in the right dir­ec­tion.”


“It of­fers little com­fort to the more than 2 mil­lion jan­it­ors, food-ser­vice work­ers, and oth­ers who are la­bor­ing in gov­ern­ment build­ings for min­im­um wage today,” Dean said. “This ac­tion, while a step for­ward, sug­gests he may still be un­will­ing to take the fight­ing stance ne­ces­sary to de­liv­er the big wins over grow­ing in­equal­ity that our coun­try des­per­ately needs.”

Pfeif­fer told me Obama’s do­ing all he can — mean­ing con­front­ing the lim­its of the pen.

“These are con­tracts,” Pfeif­fer told me. “You can’t re­write them. We’re not go­ing to rip them up, so we are do­ing as much as we can to help as many work­ers as pos­sible. We’re talk­ing hun­dreds of thou­sands of work­ers over the course of time.”

I asked Pfeif­fer how much time. His an­swer: “Dis­tant.”

The phone and the pen a pres­id­ent can wield. But neither move the na­tion nor leave a last­ing im­pres­sion. Le­gis­la­tion does. And that re­quires per­sua­sion, co­oper­a­tion, per­sever­ance, and com­prom­ise, among oth­er things.

Im­mig­ra­tion will be the test for Obama for the re­mainder of this year. The phone and pen will be use­ful only to ne­go­ti­ate with law­makers and to re­write un­der­ly­ing le­gis­la­tion.

But first the House has to write it. That makes this mo­ment cru­cial for House Re­pub­lic­ans as well as Obama. The table is set for ac­tion. House Speak­er John Boehner has com­mit­ted to a set of im­mig­ra­tion-re­form prin­ciples. He will present them to House Re­pub­lic­ans at their re­treat later this week. This may sound like simple pro­cess and low-wattage man­euv­er­ing. It is not.

Boehner knew that talk ra­dio and en­trenched con­ser­vat­ive op­pon­ents would mo­bil­ize at the first sign of lead­er­ship move­ment to­ward im­mig­ra­tion le­gis­la­tion. As part of this, the GOP lead­er­ship staff hovered closely over the im­mig­ra­tion lan­guage in Rep. Cathy Mc­Mor­ris Rodgers’s GOP re­sponse. In the main, Boehner is dar­ing hard-liners in his con­fer­ence to take a run at him and oth­er pro-re­form House GOP lead­ers dur­ing the re­treat, bet­ting that de­bate and nose-count­ing will give him an edge. Not an im­me­di­ate one, but a sense of the cur­rent play­ing field and the dif­fi­culty of the bill-writ­ing task ahead.

If Boehner con­tin­ues to move the im­mig­ra­tion train along the tracks — and noth­ing in the past two months sug­gests he won’t — Obama will have to give House Re­pub­lic­ans that which the le­gis­lat­ive pro­cess most needs. And that, put simply, is a prom­ise to en­force the law as writ­ten, something Rep. Paul Ry­an, R-Wis., who, this column noted last month, would be­come a lead­er on the is­sue, has iden­ti­fied as cent­ral to the com­ing le­gis­lat­ive tangle. It is a hoary concept, en­for­cing the law as writ­ten. It glows with the dusky pat­ina borne of age, re­si­li­ence, and be­ing treas­ured. It is also, con­sti­tu­tion­ally speak­ing, the simplest and most dir­ect and last­ing pres­id­en­tial power of all. Bio­graph­ies are writ­ten about it. Truly.

The stum­bling block that could in­hib­it House Re­pub­lic­ans from sum­mon­ing the polit­ic­al will and le­gis­lat­ive nerve to sur­mount tea-party-in­spired protests is a sense that Obama will not en­force new bor­der and in­teri­or se­cur­ity re­quire­ments. Re­pub­lic­ans fear White House short­cuts in Obama’s haste to ac­cel­er­ate a path to full-cit­izen­ship status for the es­tim­ated 11 mil­lion un­doc­u­mented im­mig­rants in the U.S. But this fear is not para­lyz­ing. There is already an elab­or­ate se­mant­ic ex­er­cise go­ing on be­hind the scenes to de­term­ine the lin­guist­ic elasti­city between leg­al status and cit­izen­ship. Hence the premi­um on trust­wor­thi­ness where en­force­ment — once the lan­guage is agreed upon — is con­cerned.

Obama’s his­tory with the Af­ford­able Care Act sug­gests a cer­tain ex­pedi­ent flex­ib­il­ity that ag­grav­ates Re­pub­lic­ans al­most as much as the law it­self. To achieve im­mig­ra­tion re­form, Obama will have to use his phone to call law­makers and his pen to settle on the fi­nal word­ing of the law. And if that le­gis­la­tion is passed and Obama af­fixes his sig­na­ture, the power to en­force the law will be pree­m­in­ent.

So, the key to Obama’s year has noth­ing to do with his flam­boy­ant use of the phone and pen. It rides in­stead on the less gaudy and haughty con­sti­tu­tion­al powers every pre­vi­ous pres­id­ent has un­der­stood. And wiel­ded to last­ing ef­fect.

The au­thor is Na­tion­al Journ­al Cor­res­pond­ent-at-Large and Chief White House Cor­res­pond­ent for CBS News. He is also a dis­tin­guished fel­low at the George Wash­ing­ton Uni­versity School of Me­dia and Pub­lic Af­fairs.

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