The day before President Obama's fifth State of the Union Address Valerie Jarrett, assistant to the president, bluntly told this writer in an exclusive interview that Obama would not hesitate to use the power of his pen to get action on vital initiatives that he feels should be passed. At the same moment that Jarrett declared that Obama would take action to attempt to break the GOP's torpedo of vital legislation backed by the White House, House Speaker John Boehner was equally blunt and saber rattled Obama that he'd better not think of taking unilateral action on legislation or else. Boehner didn't spell out what the "or else" would be. There was really no need, because Boehner, as the troupe of GOP Obama bashers before him, is again cynically spinning the bogus line that Obama is recklessly usurping the Constitution by skirting Congress and going it alone on passing legislation.
Obama is near the bottom on the list of presidents in the number of executive orders issued. The last president that issued orders at a lower rate than Obama was Grover Cleveland. GOP Presidents Reagan and George W. Bush issued far more executive orders per day in office than Obama. It's not really the number or rate of executive orders, however, that Obama has issued that's raised the hackles of the GOP. It's the executive orders that he has issued that have given the GOP ammunition to attempt to intimidate and politically bash Obama.
The GOP saw an opening to raise the canard of Obama the alleged constitutional-and-congressional-usurper when he signed a series of orders on gun control nearly a year ago. Obama took the action precisely because he knew that gun control legislation was a virtual dead letter in Congress at the time and that there was almost no chance that things would change given the iron grip that the NRA has on Congress. Obama would have had to spend precious time, energy, and resources jawboning anti-gun control congressional Democrats, wage an all-out battle with the gun lobby and the NRA, and risk losing the political momentum that he needed to do battle with GOP congressional obstructionists in the battles over the debt ceiling, spending cuts, and deficit reduction.
The executive orders on gun checks were, as executive orders go, a last resort, piecemeal attempt to at least get something on the books on guns. Obama was under no illusion that the executive orders on guns could in any way take the place of comprehensive gun control legislation. Only Congress can pass a gun control law that would have the full force of law behind it.
Obama, like most presidents, knows that the whimsical or cavalier use of executive orders to bypass Congress or to legislate from the Oval Office not only will trigger a powerful public backlash, and reinforce the opposition's usual charge of dictatorial abuse, but can and often have been overturned by Congress which has the power to change (in this case scrap) an executive order. The courts also have the same power. And there have been times when the courts have declared an executive order unconstitutional or simply vacated the orders.
That's not all. An executive order issued by one president is not even safe from another president. The textbook example of the transitory nature of an executive order is the so-called Mexico City Policy that required all non-governmental organizations that receive federal funding to refrain from performing or promoting abortion services as a form of family planning in other countries. Reagan issued the executive order in 1984. Clinton overturned it in 1993. Bush reinstated it and Obama rescinded it as one of his first acts when he took office in January 2009.
The ultimate proof of the severe limits of what an executive order can actually accomplish is the executive order that Obama said he'd issue and the GOP's cynical and contradictory response to it. The GOP adamantly opposes Obama's proposal to hike the minimum wage. The executive order he'll issue boosting the minimum wage extends only to new federal contracts issued and then only if other terms of a contractual agreement change. Boehner apparently suffered momentary amnesia from his full-throated rip of Obama as a tyrant in the use of executive orders when he quipped that this executive order would have near zero effect.
Obama's vow to wield the executive pen whenever and wherever he thinks he must amounts to a frontal challenge to the GOP to cease its relentless, dogged, and destructive campaign of dithering, delay, denial, and obstructionism to anything that has the White House stamp on it. The GOP knows this but that won't stop it from eagerly spinning its politically self-serving line of Obama the dictator. The aim as always is to tar him as a ruthless and ineffectual leader while painting itself as the supposed responsible guardian of the constitutional process and thus an innocent victim of a Democratic president's legal abuse.
Earl Ofari Hutchinson is an author and political analyst. He is a weekly co-host of the Al Sharpton Show on American Urban Radio Network. He is the author of How Obama Governed: The Year of Crisis and Challenge. He is an associate editor of New America Media. He is the host of the weekly Hutchinson Report on KTYM Radio Los Angeles and on the Pacifica Network.