By Lisa Lerer
When President Barack Obama delivers his State of the Union address on Tuesday night, the biggest question he’ll face will be how to get an ambitious second-term agenda through a divided Congress.
The answer: Go around it.
On climate change, gun control, gay rights, and even immigration, the White House has signaled a willingness to circumvent lawmakers through the use of presidential power. Already, plans are being laid to unleash new executive orders, regulations, signing statements and memorandums designed to push Obama’s programs forward and cement his legacy, according to administration aides and allies.
“The big things that we need to get done, we can’t wait on,” said White House senior adviser Dan Pfeiffer. “If we can take action, we will take action.”
The tactic carries political risk, beyond the backlash it will spark from congressional Republicans. Advisers say the president — who already faces charges from Republicans that he is concentrating too much power in the White House — remains cautious about getting too far ahead of public opinion. And executive orders can be overturned by a future president a lot easier than can legislation.
What’s more, Obama will still need to work through Congress to deal with some of the nation’s biggest concerns, including tax and spending issues as well as any comprehensive changes in the immigration system.
Still, the use of executive power isn’t new: Historically, second-term presidents, freed from fears of a political payback at the polls, have been more willing to flex their authority.
The shift to a more assertive use of such power marks an evolution for Obama, who as a U.S. senator from Illinois accused President George W. Bush of flouting Congress. After spending his first two years in office deep in negotiations with a Democratic-controlled Congress, and the last two years battling with much of the Republican-controlled House, he enters his second term prepared to move forward alone.
“He made a true sea change on thinking about the executive orders,” said Douglas Brinkley, a presidential scholar at Rice University in Houston who is part of a group of historians who periodically meet with the president. “Now, it seems to me that he’s going to be viewed as an executive power president.”
Obama’s increasing use of executive action began in the fall of 2011, when the president, frustrated with Republican opposition, urged his team to seek actions the White House could take unilaterally, according to Pfeiffer.
Branding their independent efforts “We Can’t Wait,” the White House rolled out dozens of policies that included raising fuel-economy standards, granting legal status to young immigrants, reducing student loan payments, preventing prescription drug shortages and getting jobs for veterans.
In his second term, aides say Obama will escalate his use of executive power. He’s expected to focus on job creation and economic growth, calling for new federal spending on infrastructure, clean energy and education in his State of the Union speech at 9 p.m., Washington time, tomorrow, according to a senior official briefed on the speech.
He’ll also push lawmakers for action on immigration, gun control and climate change.
Last month, he initiated 23 executive actions on gun control, as part of a legislative package proposed after the Dec. 14 killings at a Newtown, Connecticut, elementary school. They include several designed to maximize prosecution of gun crimes and improve access to government data for background checks.
After efforts to pass climate legislation to curb greenhouse gases failed in the first term, administration officials have indicated that they aim to use the Environmental Protection Agency to limit emissions from new power plants and tackle existing plants in the second, according to an environmental activist and a congressional aide.
“The opportunity is in what the president can do under the laws Congress has already passed,” said David Doniger, policy director of the climate program at the Natural Resources Defense Council, a New York-based environmental group. “It’s the tools the president already has laying around at home he can use now.”
The Pentagon is poised to extend some military benefits to the same-sex partners of service members, according to a U.S. official, including access to day-care facilities and visiting privileges at military hospitals. Topping the wish lists of gay- rights advocates in the second term is an executive order that would bar workplace discrimination by federal contractors based on sexual orientation.
And even as the president pushes for legislation revising immigration laws, his aides and advocates have a menu of actions that can be taken unilaterally by the White House, the Department of Homeland Security, and the Pentagon to benefit undocumented immigrants and their families, according to congressional staff members and immigration activists.
“If things really do truly stall and we can’t get the bipartisan agreement to fix a really broken system, these may be the kinds of tools to look for,” said Bob Deasy, a director of the American Immigration Lawyers Association.
Rules also need to be written to carry out much of the president’s signature first-term domestic policy initiatives — the expansion of health-care coverage to tens of millions of Americans, and the Dodd-Frank law, the most sweeping new regulations of the financial industry since the Great Depression.
Even in areas where the president is trying to work with lawmakers, he has emphasized his efforts to get tough with Congress. When he announced details of his immigration plan in Las Vegas last month, he said: “If Congress is unable to move forward in a timely fashion, I will send up a bill based on my proposal and insist that they vote on it right away.”
The White House assertiveness has sparked complaints from Republicans. Obama’s gun proposals, released on Jan. 16, drew a sharp response from one lawmaker mentioned as a possible 2016 presidential contender.
“President Obama is again abusing his power by imposing his policies via executive fiat instead of allowing them to be debated in Congress,” said Florida Senator Marco Rubio, in a statement released after Obama’s announcement. “President Obama’s frustration with our republic and the way it works doesn’t give him license to ignore the Constitution.”
It’s not just Republicans who have objected to Obama’s efforts to wield executive power. The U.S. Court of Appeals in Washington ruled on Jan. 25 that the president violated the Constitution when he bypassed the Senate last year to appoint three members to the National Labor Relations Board.
To be sure, Obama says he still prefers legislation when possible, recognizing that it gives his agenda deeper legal roots.
“Whenever we can codify something through legislation, it is on firmer ground,” he told the New Republic magazine in an interview last month. “It is something that will be long lasting and sturdier and more stable.”
Yet he’s in good company in using presidential authority: Scholars consider Abraham Lincoln, Theodore Roosevelt and Franklin Roosevelt to be among the presidents who relied most heavily on executive power, contrasting their records with that of Lyndon Johnson, a former Senate majority leader known for his ability to push legislation through Congress.
“The president recognized that he might not be able to be the Lyndon Johnson president with legislative achievements, that he might have to become an executive-power president,” said Brinkley.
Pending regulations in the White House pipeline position Obama to outpace Bush with second-term rulemaking. In his second term, when Democrats won control of Congress after two years, Bush’s new regulations cost the U.S. economy at least $30 billion, according to Office of Management and Budget data. Estimates for rules headed for completion in a second Obama administration already approach that figure, according to a review of regulatory filings by Bloomberg Government.
Obama delayed until after the election decisions on regulating ozone levels and requiring rearview cameras for cars, which could cost between $22 billion and $93 billion in 2020, according to the White House.
Rules approved during the first 32 months of his presidency will cost an estimated $19.9 billion and yield net benefits of more than $91 billion in monetary savings and deaths and injuries avoided, according to OMB figures.
That record aside, the president has been frank about the limitations of his new strategy.
On budget issues, a series of fiscal deadlines will force him to work with lawmakers. Only Congress can pass legislation halting automatic reductions in domestic and defense spending, known as the sequester, scheduled to go into effect next month. A continuing resolution funding the government expires in late March, meaning the government will shut down if Congress doesn’t act. There is another deadline to raise the U.S. debt ceiling two months later.
“I’m not a king,” Obama said in a Jan. 30 interview with Telemundo, a broadcasting network, when asked why he couldn’t unilaterally legalize undocumented immigrants. “We can’t simply ignore the law.”