Can’t Go It Alone

For some Americans unacquainted with the complex details of the precise powers of the executive branch, President Obama’s declaration during the State of the Union address likely raised some alarm bells. Saying that “America does not stand still — and neither will I,” Obama vowed that “wherever and whenever I can take steps without legislation to expand opportunity for more American families, that’s what I’m going to do.”

This go-it-alone approach was a welcome boon to cartoonists hungry for material, but Republican leader and House Speaker John Boehner didn’t seem to bat an eyelash. “The president must understand his power is limited by our Constitution, and the authority he has doesn’t add up to much for those without opportunity in this economy,” he said.

Boehner specifically cited the president’s announcement that he will issue an executive order increasing the minimum wage to $10.10 for new federal contracts. That’s a significant increase from the current federal minimum wage of $7.25.

“The question is, how many people, Mr. President, will this executive action actually help? I suspect the answer is somewhere close to zero,” Boehner stated.

The Speaker has a valid point. The number may be somewhat higher than zero, but will only apply to a very small percentage of the federal workforce. For one thing, most employees of federal contractors already earn more than $10.10 an hour. In addition, while the order will cover those new contracts that take effect in the beginning of 2015, it won’t affect existing contract workers who are working now below the new minimum wage. Renewed contracts will only require the higher wage if other terms of the contract change.

There is nothing new about executive actions.

According to an analysis by the Associated Press, the strategy goes all the way back to George Washington, who issued eight executive orders, although that precise term wasn’t yet in use back then.

Historians cite notable examples of executive action, including Thomas Jefferson’s authorizing of the Louisiana Purchase. In this, one of the most famous real estate transactions in history, the United States acquired from France approximately 827,000 square miles of land west of the Mississippi River for $15million, ironically borrowing the money from Great Britain at 6% interest, and nearly doubling the land area of the U.S. in the process. This deal was actually ratified by the Senate before it went into effect, so it is hardly a typical example of go-it-alone strategy.

Abraham Lincoln’s Emancipation Proclamation is perhaps a more apt example of an executive order, but it, too, was of a limited nature. Though it was one of the most famous moments in American history, the order was mostly symbolic and freed few people. It only freed slaves residing in Confederate-controlled areas. It didn’t apply to slaves in border states fighting on the Union side; nor did it affect slaves in southern areas already under Union control.

Other executive orders include Harry Truman desegregating the armed forces and George W. Bush establishing military tribunals to try “unlawful enemy combatants.”

According to the American Presidency Project at the University of California-Santa Barbara, President Obama’s record of using executive orders is hardly unusual.

Obama has issued about 34 formal executive orders per year, compared to about 36 per year for George W. Bush, 46 for Bill Clinton and 48 for Ronald Reagan.

The Constitution strictly limits the power of executive orders. Only Congress can assign new spending, and without proper funding few projects can get underway. Executive orders can also be easily reversed by subsequent presidents with the stroke of a pen.

Ironically, it was some of the president’s most ardent supporters who expressed concern about Obama’s announcement — not because they felt he was going too far, but because they were upset that he didn’t go far enough.

Some immigration overhaul supporters expressed disappointment that he did not act on his own to halt deportations, which have soared during his presidency and angered many Hispanics.

Lorella Praeli, advocacy and policy director for the group United We Dream, welcomed Obama’s renewed call in the State of the Union for passing comprehensive legislation, but was clearly unhappy with the president’s refusal to take executive action to end more deportations.

“While he’s willing to take action singlehandedly on other political issues, he so far refuses to stop deporting people who would be granted legal status and a chance for citizenship under legislation he champions,” Praeli said in a statement.

The White House argues that not only would such unilateral action destabilize the ongoing debate on Capitol Hill, possibly destroying the chances for a bipartisan immigration bill, but it also could be difficult to legally defend.

Ultimately, in order to make a real difference in virtually every area, the president and Congress will have to find middle ground and work together.

Going it alone just doesn’t work under the U.S. Constitution.

This article appeared in print on page 10 of the January 30th, 2014 edition of Hamodia.