Republicans, ever alert, see in this strategy what Scott Pruitt, the attorney general of Oklahoma, calls a “direct threat to our liberty.” (In this case, the liberty of janitors and construction workers to earn less than a living wage is at issue.) This is the refrain on the right when Democrats are in the White House. Although Bill Clinton, in the nineteen-nineties, issued executive orders at a lower annual rate than Eisenhower, Ford, or Reagan had, conservatives were perpetually inflamed by his use of Presidential power, especially when it came to labor, reproductive rights, or the environment. In 1998, Phyllis Schlafly prophesied that if the Y2K bug crashed the world’s computer networks, Clinton would “assume emergency dictatorial powers” by executive order. Senator Robert Bennett, of Utah, getting ahead of the situation, asked the military to ready itself for a response if Clinton declared martial law as New Year’s Day, 2000, dawned.
With the election of George W. Bush that fall, many of these same conservatives urged the new President to overturn Clinton’s executive orders by, well, executive order. Pro-life groups noted that Bush did “not have to wait for Congress to act” to begin overturning Clinton orders on stem-cell research and the import of RU-486. Right-wing think tanks and business lobbyists compiled hit lists of hated regulations and “possibly illegal” executive orders. Bush acted immediately to reimpose the so-called “global gag rule”—issued by Reagan, in 1984, and overturned by Clinton, in 1993—preventing the United States from funding family-planning services overseas at clinics that offered abortion-related services. By the fall of 2001, Bush had moved to reverse Clinton policies that banned road-building in national forests, limited mining on public lands, closed off wetlands to developers, and increased energy-efficiency standards.
Obama has been running the same plays in the opposite direction since he took office. “There’s a lot that the President can do using his executive authority without waiting for congressional action,” said John Podesta, who led the transition team, a few days after the 2008 election. “I think we’ll see the President do that.”
Indeed, the global gag was back off; funding for stem-cell research was back on; restrictions on public access to Presidential records were eased; and protections for workers and unions were restored. All of this suggests, first, that Obama is already comfortable with the use of what his press secretary calls “the unique powers of the office,” and, second, that he is well aware of the vulnerability of certain executive actions to swift reversal with a change in Administration.
To some degree this can’t be avoided. If President Obama is succeeded in three years by, say, President McMorris Rodgers, it will almost certainly mean a return to the status quo ante on the gag rule. But there is a wide range of executive actions that, for political or practical reasons (or both), prove more difficult to undo. Those, for the White House, should be the focus from here forward.
The minimum-wage announcement is a good start. It is hard to imagine a Republican President giving a pay cut to hundreds of thousands of minimum-wage workers. Along similar lines, an executive order banning federal contractors from discriminating against lesbian, gay, bisexual, and transgender employees—which gay-rights groups and some congressional Democrats are pushing Obama to issue—probably wouldn’t be reversed by a future President (unless that President is Rand Paul, in which case all bets are off, and the only protection any workers will have is sharpened sticks). Some executive orders are best left in place, whatever a President might think of them. In 2001, President Bush sparked a backlash when he suspended a Clinton rule reducing the acceptable amount of arsenic in drinking water. We might like a little lemon in our water, maybe a little mandarin orange; arsenic, not so much. Bush eventually had to backtrack.
Public opinion isn’t the only obstacle. Some orders can’t be reversed without litigation or extensive public hearings. Others prompt changes in markets and behavior that are too complex, and become too ingrained, to unwind. Still others—for example, orders under the Antiquities Act, setting aside federal land as national monuments—can be undone only by an act of Congress. (As contentious as monument designations sometimes are, the courts have given Presidents wide latitude to exercise this power, and Congress has never countermanded it.) Expect to see, over the next three years, more images of Obama standing in front of canyons, wetlands, and groves of trees as he announces the creation of new protected areas. This is the stuff that legacies are made of.
Congressional Republicans never cared for the conciliatory Obama; they like the confrontational one even less. For the rest of his Presidency, virtually every action that he takes will prompt a new and more bitter round of Republican complaints, cries of “fascism” (as we are already hearing on conservative talk radio), and appeals to the system of checks and balances. Just before the State of the Union address, Speaker John Boehner warned that he and other House Republicans are “going to watch very closely because there’s a Constitution that we all take an oath to, including him.”
True enough. But the Framers never intended the Constitution as an invitation to stalemate and stagnation, and a system in which Congress does nothing more than check the President is a system utterly without balance. Action is a Presidential prerogative; it is also, now more than ever, an imperative.
Original Article
Source: newyorker.com/
Author: JEFF SHESOL
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