Executive Tyranny

President Obama’s strategy of governing by executive order is designed to deal with a recalcitrant Congress. But Republican lawmakers are signaling that they’ll challenge the White House there too by demanding the legal analysis to support the president’s actions.

President Obama’s plan to bypass roadblocks in Congress and govern through executive order isn’t going over well on Capitol Hill. Republican lawmakers are demanding to see the legal justification for some of the president’s decisions on healthcare and the minimum wage.

Ultimately, this may all be about the White House but the proximate target of Republican ire is the U.S. Justice Department, as Attorney General Eric Holder and his deputy learned when they made recent appearances in Congress. They’re on the hot seat because of a little known unit in the Justice Department. It’s called the Office of Legal Counsel and it regularly writes memos that weigh in on the legality of executive branch actions.

Republicans like Utah Senator Mike Lee think the administration has some explaining to do, as he told the attorney general last week.

“I think the president certainly owes it the American people and you owe it to the president as his attorney general to make sure that when he does act by executive order that he do so clearly and clearly state the basis of his authority.” Mike Lee

Iowa’s Senator Chuck Grassley, the top Republican on the Senate Judiciary Committee, went a step further. Grassley sent a letter to the Justice Department this week demanding those memos so he could understand the legal reasoning behind some unilateral White House decisions, such as raising the minimum wage for new federal contractors and for delaying the employer mandate in the president’s healthcare law last year.

“If you can’t share it with me, will you tell me why you can’t share it with me? Because I just don’t want a big black hole here.” Grassley

Attorney General Holder said he’d think about it, then offered up this defense of his boss.

“He has made far less use of his executive power at this point in his administration than some of his predecessors have. And he will only do so, as I indicated previously, where he is unable to work with Congress to do things together.” Holder

For the record, the White House says Obama has issued 168 executive orders so far, compared to nearly 300 from President George W. Bush. But Senator Mike Lee says those numbers don’t tell the full story.

“When you look at the quality, not just the quantity, but the quality, the nature of the executive orders that he has issued, he has usurped an extraordinary amount of authority within the executive branch. This is not precedented.” Mike Lee

Senator Grassley says he expects an answer to his demands by next week.

Under an important Supreme Court analysis, dating back to the days of President Harry Truman, the courts have said the president acts with the most power when he has clear authority from Congress. Without guidance from lawmakers, the White House can still act on its own, though it’s murkier territory. And sometimes the president moves in ways that conflict with congressional commands, which lawmakers view as a power grab.

Senator Lee asked the attorney general which of those options covered President Obama’s decision to hike the minimum wage.

“There is a federal statute that authorizes him to issue the executive order regarding the minimum wage.” Mike Lee

“No, I think that there’s a constitutional basis for it and given what the president’s responsibility is in running the executive branch, I think that there is an inherent power there for him to act in the way that he has.” Eric Holder

Republicans on the Senate Judiciary Committee didn’t seem convinced. Lou Fisher, who studied executive power at the Congressional Research Service for decades, says the administration should make a better public case for its actions.

“If there is authority, even if it’s questionable authority, then don’t say I’m acting unilaterally by executive order, say I’m exercising authority that Congress gave me. But he doesn’t do that.” Fisher

Fisher says given the fractured relations between the White House and the Congress, there could be a reason for that.

“Now, I don’t know, maybe the White House was worried if he talks that way, the members will say, we gave him that? Let’s take it back.” Fisher

Obama is just the extreme version of a widespread belief among many in both parties that an enormous, intrusive federal regulatory and redistributionist regime is necessary for “solving problems” that in fact are best left to individuals and state and local government. The only argument between the parties these days is over the amount and pace of expansion––spending, for example, $800 billion on food stamps over the next decade rather than $808 billion. This belief in problem-solving big government is more insidious and thus in the long run more dangerous than Obama’s “pen and phone.”