Regardless of the outcomes of Tuesday’s midterm elections, President Obama is preparing to spring several major decisions on the public that he has postponed because of his concern about political backlash.
Although presidents often sign legislation in lame-duck sessions of Congress, it’s unusual for a president to hide his executive “to do” list from voters on so many important subjects, such as sanctions against Iran, immigration reform and nominating the next attorney general.
“It’s extraordinary that he is thinking about taking certain types of action that will have broad effects on our economy, on the makeup of our country, on virtually every aspect of American life, and we don’t know what those are,” said Richard Kelsey, assistant dean at the George Mason University School of Law.
The biggest action looming is Mr. Obama’s plan to issue an executive order on immigration that effectively would grant amnesty to some of the estimated 11 million illegal immigrants living in the U.S. The president initially planned to act in September, but nervous Democratic Senate candidates in Republican-leaning states persuaded him to wait until after the elections.
White House aides haven’t indicated the breadth of the president’s pending order, but a hint surfaced last month when the Department of Homeland Security ordered enough paper to print more than 4 million green cards and visas for next year.
The cards would give illegal immigrants the right to continue living and working in the U.S. legally — and perhaps obtain federal and state benefits.
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The action is likely to provoke a heated battle with Republican lawmakers. Three GOP senators emphasized that point again last week, when Sens. John McCain of Arizona, Lindsey Graham of South Carolina and Marco Rubio of Florida warned Mr. Obama in a letter that broad executive action would be detrimental to a more permanent fix to the immigration system.
“Acting by executive order on an issue of this magnitude would be the most divisive action you could take — completely undermining any good-faith effort to meaningfully address this important issue, which would be a disservice to the needs of the American people,” wrote the three men, all members of the “Gang of Eight” that helped push through the Senate a comprehensive immigration bill of the sort Mr. Obama says he wants.
Another decision Mr. Obama has put off until after Election Day is his choice to replace Attorney General Eric H. Holder Jr., who announced his resignation in late September. The president lost one person on his short list last week when former White House counsel Kathy Ruemmler took herself out of consideration for the post, telling Mr. Obama that she feared her role as a top presidential adviser would prompt a highly partisan confirmation battle.
Mr. Obama is believed to be giving strong consideration to Labor Secretary Thomas Perez, who served as assistant attorney general for civil rights until he moved to his current post in July 2013. But a Republican takeover of the Senate could force the president to find a nominee who would be less of a lightning rod.
“If Obama maintains control of the Senate, we are going to see another, in my opinion, radical, progressive insider — someone that Obama trusts completely,” Mr. Kelsey said. “If Republicans seize control of the Senate, it may be that he takes the simpler route and appoints someone who’s less controversial and in fact may be a career person at Justice.”
White House press secretary Josh Earnest said again last week that Mr. Obama intends to nominate someone who is “worthy of the kind of bipartisan support that’s necessary to confirm an attorney general nominee.” He said the action could come swiftly after the election.
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Mr. Earnest said pushing through the nominee in the lame-duck session would be consistent with the strategy of President George W. Bush after the midterm elections in 2006, when he nominated Robert M. Gates to replace Defense Secretary Donald H. Rumsfeld.
With the war in Iraq still being waged, Mr. Gates was nominated on Nov. 8 that year, and the Senate confirmed him Dec. 5 by a vote of 95-2. One senator who didn’t vote was Joseph R. Biden of Delaware, now vice president.
Lawmakers in both parties are also waiting to see what Mr. Obama does about Iran. If the president cuts a deal with Tehran on its nuclear weapons program involving major concessions on U.S. economic sanctions, Congress is likely to erupt.
Iranian President Hassan Rouhani has said Teheran might cooperate more with the U.S. in the war against the Islamic State in Syria and Iraq if a nuclear accord is reached.
Top administration officials have said privately in recent weeks that the president will not submit such an accord to Congress because it is not a treaty requiring Senate approval. Those reports were bolstered when an audiotape surfaced last week of Ben Rhodes, White House deputy national security adviser, telling a group of progressives in January, “We’re already kind of thinking through, how do we structure a deal so we don’t necessarily require legislative action right away.”
Secretary of State John F. Kerry has said Mr. Obama has no intention of cutting Congress out of nuclear talks with Iran but has authority to suspend sanctions.
Political analysts say such a move could generate a constitutional crisis.
Lou Fisher, a specialist on federal separation of powers, said it appears that Mr. Obama is negotiating with an eye toward his personal legacy.
“It’s as though he’s trying to have some victory in his last term, and it would have hardly any meaning because everyone would know it’s just a settlement between Obama and Iran and would not be a long-term fix,” Mr. Fisher said. “The next administration and Congress could undo it. He seems to be timing things for his own personal reputation instead of long-term national policy.”
Another issue awaiting an administration decision is the Keystone XL crude oil pipeline. Mr. Kerry said last week that he would like to make a decision “sooner rather than later” but gave no indication when it might be.
TransCanada has been waiting more than six years for the administration to make a decision on the pipeline, which would carry Alberta tar sands crude oil to refineries on Texas’ Gulf Coast. The State Department is now waiting for a court ruling on a challenge to the pipeline’s proposed route through Nebraska and preparing to issue its own study before it makes a recommendation to Mr. Obama on whether to grant a permit for the line.
The president has been under pressure from environmentalists to reject the project but doesn’t want his decision to jeopardize the re-election bid of Democratic Sen. Mary L. Landrieu, Louisiana Democrat and chairwoman of the Senate Energy and Natural Resources Committee. Ms. Landrieu supports the pipeline.
Also to come sometime after the elections is a Pentagon report on Army Sgt. Bowe Bergdahl, the soldier for whom Mr. Obama swapped five Taliban leaders held at Guantanamo Bay, Cuba.
Sgt. Bergdahl walked away from his unit in Afghanistan and was initially hailed as a hero by the White House upon his return. If the Defense Department’s report shows that Sgt. Berghdal deserted his post, Mr. Obama will have to explain again why he exchanged so many high-level detainees for the soldier.
Another controversy coming to a head is the grand jury investigation into the August police shooting of Michael Brown in Ferguson, Missouri. The panel is expected to issue its decision soon on whether to charge the white police officer, Darren Wilson.
Although the administration doesn’t directly control the timing of the grand jury’s decision, the Justice Department is also conducting a probe into whether Mr. Brown’s civil rights were violated. Mr. Holder expressed the view last week that the Ferguson police department needs to undergo “wholesale change.”
Ferguson Police Chief Tom Jackson called Mr. Holder’s comments “irresponsible,” given that the Justice Department is still investigating the police. There is concern that a decision exonerating the police officer will incite more civil unrest.
Mr. Earnest said the president “obviously is not involved directly in the legal process” but is interested in the case and following the developments.