There are two words every president, including Barack Obama, hates to hear: “lame duck.”
He’s in year six of his eight-year run. His biggest accomplishments are all in the past; his remaining proposals are stymied by Congress. His popularity is mired near 40 percent, and voters tell pollsters they see him as a leader “who can’t get things done.”
No wonder he’s a little sensitive. The president has spent much of the year fending off lame-duckery, insisting that he’s still hard at work, still bent on getting things done. “Let’s pass some bills,” he called out, mock-plaintively, to Congress last month. “It’s lonely, me just doing stuff.”
He announced that 2014 would be a Year of Action – the White House uses capital letters – whether Congress joined in or not.
He hired John Podesta as his counselor, the wily strategist who helped Bill Clinton end his presidency on a high note.
And he issued a progress report listing his top achievements for the year so far, including some that seemed, well, a bit lame: a White House Science Fair, an Energy Datapalooza and an order “directing the timely completion of the International Trade Data System.” (The report didn’t make much of a splash.)
But at least one part of the president’s strategy is working, at least when it comes to riling up his Republican opponents: the expansive use of executive orders.
On that count, to his critics, Obama is a lame duck on a rampage.
Obama hasn’t issued more executive orders than earlier presidents – in fact, he’s issued fewer. But he’s been unusually blunt in saying that he’ll use executive orders to pursue his aims whenever Congress fails to act, which a divided Congress frequently does.
When Congress wouldn’t raise the federal minimum wage, Obama used an executive order to raise it for federal contractors. When Congress wouldn’t pass legislation on climate change, Obama ordered the Environmental Protection Agency to impose emission limits on power plants.
And with Congress failing again and again to pass an immigration reform law, aides say Obama plans to issue an order later this year to give more immigrants without papers temporary permits to stay in the country – and even, potentially, permission to work.
One likely action, aides say, is a decision to expand the program that currently gives permits to so-called Dreamers – immigrants who came to the United States as children – by extending similar treatment to the Dreamers’ immediate families and undocumented parents of U.S. citizens. This program – technically, Deferred Action for Childhood Arrivals – was itself created by an Obama executive order in 2012.
Its expansion has long been sought by liberal immigration reform advocates as a humanitarian measure to avoid dividing families that are already in the country. But the idea has turned out to be more complicated – politically, at least – than it looked at first. The sudden flood of Central American children crossing the border this spring made illegal immigration a hot-button issue for more voters than before.
Even though the border crisis has ebbed, some Democrats worry that a sweeping executive order could cause a backlash that would help Republican Senate candidates in conservative states, such as Arkansas and Louisiana, in the November midterm elections.
“The Latino vote is critical in a presidential election,” a Democratic strategist told me. “But in this election, the conservative Anglo vote is more powerful.” In Arkansas, for example, where Sen. Mark Pryor, D-Ark., faces a tough re-election race, only about 2 percent of voters are Latinos.
That leaves Obama with a dilemma. He’s promised supporters that he’ll act on immigration, and aides say he’s sticking to that promise. The potential solution: a narrow order that covers only a few categories of immigrants, stipulates that their permission to stay is temporary and reaffirms the government’s intention to continue deporting anyone with a criminal record.
Even a limited measure will draw charges of “amnesty” from nativists, of course, but that’s a reaction the White House may welcome. Immigration is actually an issue that divides Republicans, Democratic strategists say; limited measures to fix the system can draw bipartisan support.
That still leaves the question of whether Obama is exceeding his authority by issuing high-impact executive orders. On immigration, at least, most legal scholars say the law gives the president broad discretion – especially on how to prioritize enforcement efforts, which is how officials are describing Obama’s impending decision.
One White House aide pointed me to an unexpected authority: former Attorney General Alberto Gonzales, who served under President George W. Bush. “The courts have generally been inclined to defer to the executive’s discretion” when it comes to enforcing immigration laws, Gonzales wrote in USA Today last week.
It will matter, of course, how broad Obama’s order is, and whether it stretches the idea of “deferred action” to create a new category of long-term residency permit.
But it won’t be much of a threat to the Constitution. It will be an executive order, issued in broad daylight. If members of Congress don’t like it, they can pass a law to overturn it. They can even sue Obama, as House Republicans say they will over the president’s selective implementation of his health care law. Nothing wrong with that. Litigiousness, after all, is the American Way.
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