With the Senate’s failure yesterday to extend unemployment benefits for the millions of Americans who have lost their job due to the financial crisis and are facing an extremely dire jobs situation, people are asking if President Obama can step in and use his executive power to do something. The short answer is no. Here’s why.
Article II, Section I of the Constitution grants the President “executive power,” meaning, theoretically, that Presidents can use their authority to do just about anything they want. However, the problem with the idea of Obama granting an executive order extending unemployment benefits comes from language a little later in the Constitution, in Section III of Article II. That sections states that the President shall “take Care that the Laws be faithfully executed.” This language is designed to protect our democratic form of government form being overtaken by a rogue President who wants to become dictator. Good idea, right?
As rightly noted by OpenCongress user JoshR, since the Youngstown Sheet & Tube Co. v. Sawyer Supreme Court finding in the 1950’s, executive orders have been considered valid when they clarify or further the laws made by Congress, but invalid when they go beyond the scope of the law. In this case, an executive order from President Obama to extend unemployment benefits would pretty clearly be in violation of the laws as created by Congress. In April, Congress voted favorably on an extension that was intentionally designed to expire on June 2. Yesterday, and several times previously this month, they voted clearly against extending the benefits further. With these actions from Congress, it’s hard to see how, constitutionally, Obama could step in here and defend an executive extension of UI benefits as within the scope of the law.
In sum, President Obama does not have legal authority to extend unemployment benefits now that the extensions have been definitively rejected by Congress, and, for constitutional reasons, that’s probably a good thing. His powers on this issue now extend pretty much to the bully pulpit, which he can use to bring more attention to the unemployment crisis and push Congress to take action in this area. That in itself can be very powerful.