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Policy Solution

15 Executive Actions

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.

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AnchorFore­word

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.

Read the full Fore­word here.


Anchor15 Exec­ut­ive Actions

  1. Commis­sion a Justice Depart­ment report, The Consti­tu­tion in 2025, modeled after The Consti­tu­tion in the Year 2000.
  2. Direct federal agen­cies to find ways to increase voter parti­cip­a­tion nation­wide.
  3. Direct federal agen­cies to accept desig­na­tion as NVRA agen­cies.
  4. Enlist the private sector to assure free and fair elec­tions.
  5. Appoint Repub­lic­ans and Demo­crats to the Elec­tion Assist­ance and Federal Elec­tion Commis­sions.
  6. Sign an exec­ut­ive order requir­ing disclos­ure of polit­ical spend­ing by entit­ies awar­ded govern­ment contracts.
  7. Request that the Secur­it­ies and Exchange Commis­sion issue regu­la­tions requir­ing disclos­ure of corpor­ate polit­ical spend­ing.
  8. Request that the Federal Commu­nic­a­tions Commis­sion require more thor­ough disclaim­ers of outside spend­ing on polit­ical advert­ise­ments.
  9. Create a Pres­id­en­tial Commis­sion on Mass Incar­cer­a­tion, modeled after the “Kerner Commis­sion.”
  10. Issue an exec­ut­ive order direct­ing federal agen­cies to recast their crim­inal justice grants in a Success-Oriented Fund­ing model.
  11. 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.
  12. Issue an exec­ut­ive order to “ban the box” on federal agency job applic­a­tions, except for law enforce­ment posi­tions.
  13. Direct the Attor­ney General to issue new guid­ance banning discrim­in­at­ory law enforce­ment tech­niques.
  14. Request that the Attor­ney General survey the use of “secret law” in the federal govern­ment and develop proced­ures to make the law public.
  15. Issue an exec­ut­ive order apply­ing key federal inform­a­tion-shar­ing restric­tions to “suspi­cious activ­ity reports” provided by state and local law enforce­ment.