President Obama's "Power of the Pen"

Since the Republicans took over the House in 2010, there has been much talk about gridlock. In fact, the role of Harry Reid has been to prevent House bills from darkening the President’s doorstep, with budgeting, prior to the past month, left to “continuing resolutions” and Obama ruling by executive order and regulation rather than trying to find common ground. With this week’s braggadocio that he had a pen to sign executive orders and a phone to engage the public, Obama has called attention to his disinterest in even attempting to find areas of cooperation.

While stories on the Internet about executive orders declaring martial law are beyond the pale, there is reason to be concerned about the Constitutional Law professor’s distain for the role of Congress:

– In Noel v Canning, the Supreme Court is considering appointments to the National Labor Relations Board made by President Obama using “recess appointments” when the Senate was technically in session – the problem being that the administration could not get confirmation of their union-favoring nominees through the Senate. The result: a likely Supreme Court decision striking down the appointments and leaving over 100 NLRB (largely pro-union) decisions in limbo.

–  Robert Wilkins  has been appointed to the DC Appeals Court, giving Democrats a 7-4 majority on the court which deals, among other things, with the legality of federal regulations. Appointments to break a 4 to 4 tie had been held up by Senate Republicans on grounds of ideology rather than competence, but became possible in December (at least for the current Senate) when Harry Reid changed the rules to allow approval by a simple majority rather than a 60 vote hurdle. A little more ink has been added to Obama’s pen.

At least in numbers, Obama has not been out of line with his recent predecessors, issuing 35 to 40 executive orders per year, most dealing with routine functions of government.  Some decisions – such as the refusal to deport underage illegal immigrants, the modification of work requirements for welfare, and the EPAs classification of carbon dioxide as a pollutant – probably required legislation, but were not successfully challenged by Republicans. (Under the Congressional Review Act of 1996 – part of the Contract with America – significant rules must be submitted to both houses of Congress and the Government Accounting Office. Only one rule – on ergonomics – has ever been disapproved by both houses.) If Obama follows through on his most recent threat to act unilaterally on immigration and the minimum wage he would probably provoke a House reaction to little effect and lawsuits to be resolved after he is gone.

Equally as problematic as the administration’s actions are the decisions not to act when the law would seem to call for it – the constantly changing list of exceptions and delays on Obamacare; the non-enforcement of regulations keeping the IRS out of political enforcement; the lack of personal accountability of anybody for the mortgage-driven financial meltdown of 2008. Eric Holder has certainly be an expert at selective enforcement.

Elections do have consequences. Fortunately, what can be done by executive order can be undone by executive order. A Republican Senate would help, but real change will have to wait until the 2016 elections.


No video this week. Instead this link provides the Wall Street Journal / Heritage Foundation’s “financial freedom” ranking of countries based on such factors as fiscal soundness, government size, and property rights. The United States has dropped out of the top 10 for the first time.