President Obama has an obvious workaround for dealing with a combative Congress—he’ll just blaze his own path as the titular head of the executive branch.
As president, Obama can bypass some of what he calls the “slash-and-burn partisanship” by taking executive actions, issuing orders to federal agencies and setting new rules and regulations.
This power—one he’s not too sheepish to use—enables the president to fulfill at least some of an economic environmental agenda that House Republicans have successfully blocked. Obama plans to rely on his rulemaking powers to enhance gun control.
“I will not allow gridlock, or inaction, or willful indifference to get in our way,” Obama said in his first in a series of economic speeches last month. “That means whatever executive authority I have to help the middle class, I’ll use it.”
It’s far from a fool-proof strategy. The federal bureaucracy can be just as obstinate as Capitol Hill. In fact, several dozen proposed agency rules have been garbled up by the White House machinery. Others remain in limbo as independent agencies such as the Securities and Exchange Commission struggle to reach a consensus.
For some of the more pressing problems, executive actions are irrelevant. Obama cannot unilaterally approve a 2014 budget before the Oct. 1 deadline, or increase the federal government’s $16.7 trillion borrowing authority without Congress’ blessing.
The president did issue guidance last year that stopped deportation proceedings for younger illegal immigrants, but it has proven to be no substitute for the broader overhaul of immigration policy that Obama supports.
TOO BIG TO SUCCEED
Obama’s own administration is part of his problem. The White House Office of Management and Budget can be the source of infernal delays. An OMB division known as the Office of Information and Regulatory Affairs was established under the 1980 Paperwork Reduction Act to review draft regulations and implement government-wide policies.
More than 120 rules that were supposed to move through this division in 90 days have been stalled, according to a June report by the Coalition for Sensible Safeguards.
OIRA was supposed to finalize a rule by Feb. 28, 2011 that would require car manufacturers to install rear-view cameras with greater visibility so that children are not injured or killed when drivers back-up. The administration decided in June to delay the rule until 2015.
It has gone almost 1,200 days without approving a list from the Environmental Protection Agency that cover “chemicals of concern” that pose risks to people’s health. Workers trying to cash in on the natural gas boom from hydraulic fracturing could face health risks and death from exposure to crystalline silica, but the OIRA review has taken more than 900 days.
“It shouldn’t be as hard as it is,” said Katie Weatherford, a regulatory policy analyst at the Center for Effective Government. “The consequence is the lack of protections for public health and public safety.”
Noah Sachs, a law professor at the University of Richmond who specializes in environmental regulation, said it often takes three to five years from the time an agency first develops a major rule until it takes effect.
“Once it hits the White House, a much broader array of stakeholders get involved and that leads to a lengthening of the process,” said Sachs, who is also a scholar at the Washington-based Center for Progressive Reform.
These stakeholders include other federal agencies trying to influence the final wording, in addition to industry making a second effort after rounds of public input to shape the regulations. Once a regulation gets finalized, it is often challenged in court, further delaying its implementation.
Obama’s major environmental policy will be to restrict greenhouse gas emissions from old and new power plants. It’s an effort to limit the ravages of climate change—a manmade scientific phenomenon that some GOP lawmakers doubt and some Democratic congressmen are wary of addressing.
“My bet is that both of them will be finalized by the end of the administration, and then it’s almost a certainty that they will be challenge in court,” Sachs said. “We could be looking at 2017 or 2018 before these finally take effect.”
House Republicans support adding another layer of complexity to the process. Before departing on their August recess last week, they passed the Regulations from the Executive in Need of Scrutiny (REINS) Act. The bill would require congressional approval of any rules that have an economic impact of more than $100 million.
The measure will not move forward in the Democratic majority Senate, so the Obama administration does not have to tangle with this additional hurdle.
But the executive branch extends far beyond the White House to include the SEC, the Federal Deposit Insurance Corporation, the Federal Trade Commission, the Federal Communications Commission, and the National Labor Relations Board.
While the president appoints who leads these agencies, he has a minimal amount of sway over them. Nowhere is that more apparent than in the implementation of the 2010 Dodd-Frank financial reform that Obama said at its signing would “help lift our economy and lead all of us to a stronger, more prosperous future.”
But three years later, it is still an open question in Washington as to whether the law ended the era of banks that are too big to fail and require government rescues. Of the 279 deadlines for finalizing rules, more than 60 percent have been missed, according to the law firm Davis Polk.
The president has warned about the dangers of income inequality, but the SEC has not approved a rule that would require companies to disclose how much their CEO earns compared to an average employee.
Bart Naylor, the financial policy advocate for the progressive group Public Citizen, said he hopes that the president will use executive actions to further his agenda, but he doubts that Obama thought about the CEO-worker pay ratio when naming Mary Jo White as the new SEC chairwoman this year.
“I don’t imagine that was a litmus test when he was screening SEC chair or commission slots,” Naylor said. “I’m skeptical that he said, ‘Thou shalt pass the CEO-worker pay ratio in a month.’”
Despite these drawbacks, the past three administrations have increasingly relied on executive actions, said Jonathan Adler, a law professor and director of Case Western Reserve University’s Center for Business Law and Regulation.
The lesson from past administrations is that Obama benefits from a careful and tedious approach, since a court could otherwise easily overturn the rule and undermine what the president was trying to accomplish. This means that it increasingly matters what happens behind the scenes, instead of what Obama says from behind the podium.
“When agencies rush things, they often make the sort of mistakes that make them more vulnerable,” Adler said. “You’ve got to make sure that you’re dotting your I’s and crossing your T’s.”
