Obama’s Threat of Executive Action Won’t Help the Economy

The White House can talk all it wants about executive action but Congress still calls the shots on the big issues.

WASHINGTON, DC - NOVEMBER 21: President Barack Obama signs a bill in the Oval Office at the White House, on November 21, 2013 in Washington, DC. President Obama signed three bills titled H.R. 2747, Streamlining Claims Processing for Federal Contractor Employees Act, S. 330, HIV Organ Policy Equity Act, and S. 893, Veterans Compensation Cost of Living Adjustment Act of 2013. 
National Journal
James Oliphant
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James Oliphant
Jan. 20, 2014, midnight

The pres­id­ent re­cently has be­come fond of say­ing he has a “pen and a phone.” And while it’s tempt­ing to snarkily sug­gest that all he needs now is a laptop and a cof­fee mug to put him on the same level as every in­tern in Amer­ica, there is a prom­ise — or a threat — be­hind those words.

What Pres­id­ent Obama is really talk­ing about is power. Seni­or White House aides have pledged that this will be the “Year of Ac­tion” — and it’s a phrase the pub­lic will be hear­ing both be­fore and after the State of the Uni­on ad­dress next week and likely dur­ing it. The pen, aides say, is used to sign ex­ec­ut­ive or­ders, ac­tions to im­ple­ment policy in areas where Con­gress hasn’t le­gis­lated. The phone, they say, is used to rally sup­port, to bring in out­side groups from around the coun­try to push Con­gress to do more.

The White House sought to use that pres­sure earli­er this month when it im­por­ted some strug­gling Amer­ic­ans for an event to dram­at­ize the need to ex­tend un­em­ploy­ment in­sur­ance. But that event ex­posed the prob­lem with the phone, no mat­ter on whose desk it sits: The tac­tic didn’t work. Con­gress re­mains dead­locked over ex­tend­ing those be­ne­fits and a solu­tion, when or if it comes, won’t be be­cause of an ad­min­is­tra­tion photo-op. And it also re­veals the short­com­ings of the pen: Obama can’t ex­tend those be­ne­fits him­self. Those people are hurt­ing, and the pres­id­ent can’t do a thing about it.

That’s just one ex­ample, but it un­der­scores the chal­lenge the White House faces as it seeks to ap­pear pro-act­ive in the face of a do-little Con­gress. When ex­amples of ex­ec­ut­ive power and pres­id­en­tial au­thor­ity are used in the con­text of the Obama ad­min­is­tra­tion, they’re of­ten cited by con­ser­vat­ives fear­fully wringing their hands about some per­ceived tyr­an­nic­al power grab. But there are real lim­its to what this pres­id­ent can do, es­pe­cially on the eco­nomy: le­gis­lat­ive ones, leg­al ones, prag­mat­ic ones. It means the ad­min­is­tra­tion has to talk big while walk­ing small or risk be­ing viewed as in­ef­fec­tu­al.

If the ad­min­is­tra­tion’s “Year of Ac­tion” rol­lout sounds fa­mil­i­ar, it’s be­cause this is an old product that’s been reshelved and wrapped in a new and im­proved pack­age. Ever since Re­pub­lic­ans took the House in 2010, Obama has been sound­ing the same note over and over again. “We Can’t Wait” was a battle cry forged dur­ing a Mid­west­ern bus tour three years ago when the pres­id­ent was try­ing to build sup­port for his Amer­ic­an Jobs Act. He gave speech after speech ur­ging Amer­ic­ans to press Con­gress to pass the le­gis­la­tion. The act, es­sen­tially a $450 bil­lion stim­u­lus pro­pos­al, rode a bul­let train to nowhere.

Since then, the ad­min­is­tra­tion has un­veiled a series of small-bore eco­nom­ic ini­ti­at­ives that, while well in­ten­ded, likely can only make a dif­fer­ence at the mar­gins. The first was a $4 bil­lion in­vest­ment in mak­ing build­ings more en­ergy-ef­fi­cient. The most re­cent came last week in North Car­o­lina, where Obama launched a pub­lic-private “in­nov­a­tion hub” in­ten­ded to de­vel­op tech­no­lo­gies that could even­tu­ally lead to new man­u­fac­tur­ing jobs. It wasn’t ex­actly the kind of dir­ect in­vest­ment in a “shovel-ready” in­fra­struc­ture job that Obama has long ad­voc­ated, something he con­ceded in his re­marks. “This is go­ing to be a long haul,” he said. A query to the White House about how many jobs had been cre­ated na­tion­ally by the “We Can’t Wait” pro­gram went un­answered.

But small ball may be the best game for the ad­min­is­tra­tion to play. Every time it has gone lar­ger, it has cour­ted con­tro­versy, as when the pres­id­ent uni­lat­er­ally de­cided to stop en­for­cing de­port­a­tion man­dates for cer­tain chil­dren of il­leg­al im­mig­rants, to al­low them to stay in the coun­try, or the in­dustry fur­or caused by the En­vir­on­ment­al Pro­tec­tion Agency’s new re­straints on coal-fired power plans.

And that’s an­oth­er reas­on ex­ec­ut­ive ac­tions are risky: Many lead to lit­ig­a­tion. Those EPA rules will likely be tied up in fed­er­al court, per­haps for years. Just last week, the Su­preme Court heard a chal­lenge to Obama’s re­cess ap­point­ments to the Na­tion­al Labor Re­la­tions Board — an ex­ec­ut­ive ac­tion that very well could be re­versed, to the ad­min­is­tra­tion’s em­bar­rass­ment. In the very same week, a fed­er­al Ap­peals Court in­val­id­ated Obama-era Fed­er­al Com­mu­nic­a­tions Com­mis­sion rules that re­quired In­ter­net ser­vice pro­viders to treat all traffic equally.

It might be no sur­prise, then, that when Obama’s press sec­ret­ary, Jay Car­ney, was asked last week wheth­er — as part of the “Year of Ac­tion” — the pres­id­ent would be even more ag­gress­ive on im­mig­ra­tion policy, con­sid­er­ing that re­form bills re­main stalled on the Hill, he de­murred. “The way to ad­dress all of these is­sues is through com­pre­hens­ive im­mig­ra­tion re­form,” Car­ney said — not, he im­plied, through uni­lat­er­al ac­tion.

Re­mem­ber, this is an ad­min­is­tra­tion that in­sisted it did not have the power to raise the debt ceil­ing by it­self, that asked Con­gress to rat­i­fy its de­cision to strike Syr­ia, that is now seek­ing its help to un­tangle coun­terter­ror­ism sur­veil­lance policy, and that has dragged out its ex­ec­ut­ive dis­cre­tion so long on ap­prov­ing the Key­stone XL pipeline that some Re­pub­lic­ans are try­ing to pass bills to force it to act.

Yes, the pres­id­ent has a pen, and it’s a nice one. But there re­mains the ques­tion of how much ink there’s really left in it.

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