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Unilateral Executive Action
It may work for Obama politically, but its legality is doubtful.

(WhiteHouse.gov via Flickr)

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A fact sheet issued by the White House press office on June 17 drew attention to the administration’s penchant for executive unilateralism: “President Obama Announces New Pen and Phone Actions to Spur Innovation and Entrepreneurship to Revitalize American Manufacturing.”

The actions include holding the first ever “Maker Faire” on White House grounds June 18 and calling on mayors to, among other things, “spur manufacturing entrepreneurship, and inspire young people to pursue careers in manufacturing and engineering.”

Humor can be found in the presumption that entrepreneurship and innovation can be advanced by edict. But Obama’s “pen and phone” strategy for advancing his agenda is no joke. The phrase “pen and phone” became associated with the president when he promised, in his first cabinet meeting of 2014, to “move the ball forward” should Congress not cooperate with his agenda:

One of the things that I will be emphasizing in this meeting is the fact that we are not just going to be waiting for legislation in order to make sure that we are providing Americans the kind of help that they need. I’ve got a pen, and I’ve got a phone, and I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward.

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Preferably, the ball will be “moved forward” with the concurrence of Congress. Should Congress prove negligent in its sacred charge of advancing the president’s agenda, however, that ball must be — and will be — moved forward by other means.

As the admiring media have documented, Obama is making good on his promise of executive unilateralism. An MSNBC article of April 4 finds him “picking up his pen and phone to move two issues forward by executive action: education policy and equal pay.”

The education part refers to Obama’s establishment of Youth Career Connect grants, which are expected to award a total of over $100 million to “school districts, institutions of higher education, the workforce investment system, and their partners” with the aim of providing “real-world learning opportunities for students.”

The White House press release announcing an Obama visit to a Maryland high school to reveal the grant winners said: “President Obama has made clear that he is committed to making 2014 a year of action by taking steps — both with Congress and on his own — to expand opportunity for all Americans” (emphasis added).

The reference to “equal pay” concerns Obama’s signing of two executive orders dealing with the policies of federal contractors. One prohibits retaliation against female workers who discuss their pay, and the other requires disclosure of data on the gender, race, and pay of new hires. Earlier, the White House issued an executive order raising the minimum wage for federal contractors and subcontractors, again circumventing a Congress reluctant to take up the issue.

Obama followed up with another pen-and-phone action concerning federal contractors on June 17. LGBT groups were frustrated that the Employment Non-Discrimination Act, which would ban discrimination on the basis of sexual orientation or gender identity by employers nationwide, was halted in the Republican-controlled House of Representatives. “In the meantime,” writes Jennifer Bendery at the Huffington Post, “pressure has grown for presidential action that doesn’t require legislative approval.” So the White House issued an executive order forbidding federal contractors and subcontractors from engaging in such discrimination.

The same day, Obama announced his intention to expand the Pacific Remote Islands Marine National Monument from 87,000 square miles to nearly 782,000. Miffed that he did not first consult with Congress, House Natural Resources Committee chairman Doc Hastings (R., Wash.) declared the act to be “another example of this imperial presidency.”

While the term “pen and phone strategy” became popularized only this year, unilateral executive action is not new to the administration. Among the most prominent of his earlier “pen and phone” maneuvers are the changes made to the Affordable Care Act since its ratification in 2010. Galen.org keeps an ever-expanding list of changes made by Obama to the ACA. To date, there have been 23 changes made by administrative action, which include delaying the individual and employer mandates.

In 2012, Obama used his pen-and-phone strategy to “move forward” on immigration. When the DREAM Act, which would grant legal status to some young illegal immigrants, did not pass the Senate, Obama issued an executive order that deferred deportation for some young aliens under the moniker Deferred Action for Childhood Arrivals (DACA). Factcheck.com denied that this action constituted illegal enactment of the DREAM Act by the president. The move arguably undermined the rule of law nonetheless.

Many expect — and some hope — that more pen-and-phone action on this front awaits us. Republican senator Marco Rubio (Fla.) has raised the possibility that Obama would try to use his executive authority to “legalize” the 11 million illegal immigrants already in place. That’s an extreme-case scenario, but some immigration advocates have proposed unilateral executive action should the legislative process fail to deliver.

In a 2013 article for National Journal, Fawn Johnson praises the Obama administration for being “willing to exert authority to stop the deportation of hundreds of thousands of undocumented youth through its deferred-action program announced last year.” She calls for further unilateral action from the White House, noting that “politically, all President Obama needs is proof that Congress can’t get the job done.”

Politically, perhaps. But legally?

— Spencer Case is a philosophy graduate student at the University of Colorado. He is a U.S. Army veteran of Iraq and Afghanistan and an Egypt Fulbright alumnus.



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