At a time of fierce debate between President Obama and Congress over the use of executive action, this policy proposal outlines 15 steps the administration can take to overcome a paralyzed government, strengthen democracy, secure justice, and further the rule of law.
Foreword
Michael Waldman
In January 2014, President Barack Obama met with his Cabinet and vowed a program of strong executive action. Congress remained gridlocked, he noted. But “I’ve got a pen and I’ve got a phone.” Obama’s pert phrase neatly encapsulated a president’s power to take executive actions and to convene citizens toward public goals. When Congress is paralyzed, and the law allows, a president need not wait to act.
So far this year, the Obama administration has set aside 1,600 acres of California land as a national monument. It boosted the minimum wage for employees of federal contractors. It gathered 100 college presidents to discuss ways to make higher education more affordable, and publicly released new data on racial disparities in schools. The president announced a bid to change overtime labor rules, and he ordered a review of deportation policy. Such executive actions can palpably advance the public good.
But the Obama administration also has a broad opportunity to make significant progress in another realm: taking steps to help fix the broken systems by which public decisions get made. Individual policies, no matter how valuable, will achieve little if we do not fix our broken democratic systems. Bold executive action can help unstick some of the very gridlock that plagues government.
This report sets out 15 steps the administration could take to strengthen democracy, secure justice, and further the rule of law. None require congressional approval. All are explicitly within the legal authority of the president or other executive branch officials. Taken together, they would help address the quiet crisis of American democracy.
An essential tool for governance
Predictably, the administration’s new focus on executive action has ignited controversy. Congressional opponents have held hearings on “the President’s Constitutional duty to faithfully execute the laws.” Media commentators hyperventilated on cue. “Executive Order tyranny – Obama plans to rule America with pen, phone,” warned Fox News commentator Andrew Napolitano.
Is the president’s new strategy a euphemism for overreach? Hardly. President Obama has issued executive orders at a slower pace than all recent predecessors. Obama issued 147 such orders in his first term. By comparison, Harry Truman issued 504 in his first term; Dwight Eisenhower, 266; John F. Kennedy, 214; Lyndon Johnson, 325; Richard Nixon, 247; Gerald Ford, 169; Jimmy Carter, 320; Ronald Reagan, 213; George H.W. Bush, 166; Bill Clinton, 200; and George W. Bush, 173.
There is no little irony here. In recent years, it has been progressives who worried most about the overreach of presidential power, while conservatives celebrated robust chief executives. The parties sometimes seem to be swapping clothes. But there is a difference between strong executive action to protect the environment or advance open government, and actions carried out in secret that stretch the bounds of the law.
A strong presidency was first envisioned by those who wanted an activist government, which would come, predicted Alexander Hamilton, only from “energy in the executive.” Whether it was Thomas Jefferson buying Louisiana without consulting Congress, or Abraham Lincoln freeing the slaves by proclamation, the rise of a powerful presidency was central to a growing federal presence.
But Cold War abuses, Vietnam, and Watergate scarred liberals. In the 1940s and 1950s, historian Arthur M. Schlesinger, Jr. wrote “The Age of Jackson” and “The Age of Roosevelt” trilogy to celebrate strong chiefs. By the 1970s, however, he warned of excessive executive authority in “The Imperial Presidency.”
Meanwhile, conservatives grew enamored of presidential might. Vice President Dick Cheney waged a decades-long crusade to recover what he saw as neutered executive power. He proudly pointed to his 1987 statement that the president at times will feel “duty bound to assert monarchical notions of prerogative.” By the end of the Bush years, among many Republicans, it seemed that support for a strong presidency had become a euphemism for “I back waterboarding.”
Yes, there is plenty of hypocrisy to go around. But it does not require torture — or torturing the Constitution — to see that presidents have developed many legitimate tools to advance their agenda that go beyond waiting meekly for Congress to act.
That is as it should be. We have had a divided federal government for all but 13 of the past 42 years. Senators have staged more filibusters in the past decade than in the rest of the country’s history put together. Congress seems institutionally frozen. The 112th Congress was the least productive in at least six decades. The current Congress may beat that record.
Little wonder that presidents have found ways to push policy and prod the bureaucracy without waiting for congressional action or approval that may never come. This power is especially used by modern presidents to advance policy changes in their second terms, as the end of their tenure nears and their ability to sway Congress recedes.
15 Executive Actions
- Commission a Justice Department report, The Constitution in 2025, modeled after The Constitution in the Year 2000.
- Direct federal agencies to find ways to increase voter participation nationwide.
- Direct federal agencies to accept designation as NVRA agencies.
- Enlist the private sector to assure free and fair elections.
- Appoint Republicans and Democrats to the Election Assistance and Federal Election Commissions.
- Sign an executive order requiring disclosure of political spending by entities awarded government contracts.
- Request that the Securities and Exchange Commission issue regulations requiring disclosure of corporate political spending.
- Request that the Federal Communications Commission require more thorough disclaimers of outside spending on political advertisements.
- Create a Presidential Commission on Mass Incarceration, modeled after the “Kerner Commission.”
- Issue an executive order directing federal agencies to recast their criminal justice grants in a Success-Oriented Funding model.
- Direct the Justice Department to identify federal prisoners to whom the Fair Sentencing Act would retroactively apply, and recommend commutations for all those eligible, barring exceptional circumstances.
- Issue an executive order to “ban the box” on federal agency job applications, except for law enforcement positions.
- Direct the Attorney General to issue new guidance banning discriminatory law enforcement techniques.
- Request that the Attorney General survey the use of “secret law” in the federal government and develop procedures to make the law public.
- Issue an executive order applying key federal information-sharing restrictions to “suspicious activity reports” provided by state and local law enforcement.