- The Washington Times - Tuesday, July 1, 2014

President Obama vowed to double down on his use of executive action Tuesday, a move that some constitutional experts say spurns the intent of the Founding Fathers to govern by consensus, however difficult.

Facing litigation from House Republicans over his repeated use of executive orders to bypass Congress, Mr. Obama nevertheless urged his Cabinet members to “be creative” in looking for more ways for him to exercise his presidential power unilaterally.

“If Congress can’t act on core issues that would actually make a difference in helping middle-class families get ahead, then we’re going to have to be creative about how we can make real progress,” Mr. Obama said.

House Republicans have thwarted much of Mr. Obama’s agenda, including a push to raise the minimum wage nationwide. But constitutional scholars say the president’s go-it-alone strategy is ignoring some basic premises of the government’s founding — it’s supposed to be difficult to pass laws, and inaction is a valid consequence of a failure to compromise.

“The Framers knew that forging national policy, with all the divisions within the political parties, would be hard to do, and there would need to be a series of deliberations and compromises,” said Lou Fisher, a specialist on the separation of powers who worked more than 40 years at the Library of Congress. “That’s something that Obama and his team don’t do. The instinct to act unilaterally shows a lack of respect for the political process and a lack of ability to participate in it.”

He said public opposition to presidential executive orders dates back to George Washington’s proclamation of neutrality in 1793 in the war between France and England, which created a furor among many in the fledgling U.S.

Other presidents have wielded executive authority much more than Mr. Obama, who has averaged about 33 executive orders per year, according to the American Presidency Project at the University of California at Santa Barbara. George W. Bush issued an average of 36 orders per year, Bill Clinton 45 orders annually, Ronald Reagan issued 47 per year and Jimmy Carter signed about 80 per year.

As of June 20, Mr. Obama had issued a total of 182 executive orders on everything from raising the minimum wage for federal contractors to capping the cost of student loans. He’s vowing to take more action unilaterally on immigration, now that Speaker John A. Boehner has informed him that the House won’t act on the issue this year.

Mr. Fisher said Mr. Obama reminds him of Mr. Carter — someone who gives lots of speeches but displays an inability to move Congress. He said Mr. Obama showed a penchant from his second day in office, when he signed an executive order to close the terrorism detention facility at Guantanamo Bay, Cuba.

“From the start, he thought that unilateral action was the way to go,” Mr. Fisher said. “You can’t close Guantanamo unless you have a facility [in the U.S.] and appropriations from Congress, which he finally understood. That was a bush-league effort from the start and showed that he doesn’t understand how the political process works.”

White House officials say the president has tried repeatedly to work with congressional Republicans, only to encounter the GOP’s strategy of refusing to compromise with Mr. Obama as a way of appealing to their conservative base. They say that on comprehensive immigration reform, for example, a majority of the House would pass the bipartisan Senate bill if Republican leaders would allow a vote.

“There was clear support among House Republican leaders for moving forward on comprehensive immigration reform,” said White House press secretary Josh Earnest, who added that Mr. Boehner’s announcement “effectively killed it.”

Asked if Mr. Obama’s pending executive actions on immigration this fall would be a political benefit to Democrats in the midterm elections, Mr. Earnest replied, “That’s not what’s guiding the president’s decision.”

Some analysts believe Mr. Obama simply cannot get any more cooperation from this Congress.

“I think this is a president who’s out of options and very frustrated,” said John Hudak, a specialist on presidential power at the Brookings Institution. “The idea that somehow this president or another president in his position could talk to the House in some way and find middle ground on a lot of these issues seems a bit of a stretch.”

Mr. Hudak said the Founding Fathers intended for governing by consensus to be difficult, but said this Congress is an “outlier” in terms of its minimal productivity. The current 113th Congress has enacted 125 laws; the 112th Congress passed 284 laws, while the all-Democratic 111th Congress in Mr. Obama’s first term passed 385 laws, including Obamacare.

“The Founders intended for government to address its problems, not to ignore them,” Mr. Hudak said.

But the failure to solve problems can also be laid at the president’s doorstep, said Mr. Fisher, who noted that even a strong partisan president such as Ronald Reagan knew how to work out compromises with the other party.

“He did work with Democrats and was quite good at it, and seemed to enjoy it,” Mr. Fisher said. “You don’t get the sense with Obama, as he goes around the country to have lunch with different people, that he likes to sit with members of Congress and build support in areas where progress can be made.”

Perhaps Mr. Obama did reveal his true colors when he joked at the White House correspondents’ dinner in 2013 about the prospect of socializing with Senate Minority Leader Mitch McConnell, Kentucky Republican.

“Some folks still don’t think I spend enough time with Congress — ‘Why don’t you get a drink with Mitch McConnell?’ they ask,” Mr. Obama said. “Really? Why don’t you get a drink with Mitch McConnell?”

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