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 In his Tuesday night speech, Obama stayed away from the kind of
bold, detailed proposals that some lawmakers and media pundits said
beforehand would shake up his relationship with Congress, legal
experts said afterward.
He vowed to act on his own but offered modest or vague ideas that
hardly stretched what Americans think of as a president's power, and
that were unlikely to send business organizations rushing to file
many lawsuits in courthouses.
His proposals to go it alone included a minimum wage increase for
federal contract workers, creation of a "starter savings account" to
help millions of people save for retirement and plans to establish
new fuel efficiency standards for trucks.
Despite the administration's buildup before the speech, the
high-flying rhetoric of the address itself and a promise of more
such proposals, Curt Levey, president of the Committee for Justice,
a conservative legal group, said the president was not very explicit
about what executive actions he might take.
"The theme was clearly there," Levey said. "It might have been a
little more conciliatory, a little less explicit than I
anticipated."
ONE MENTION
Exactly once in the 6,800-word speech to lawmakers — when Obama said
he would require a minimum wage of $10.10 an hour in future federal
contracts — did he use the phrase "executive order."
It is possible that contractors could sue over the requirement,
although any such lawsuit would need to overcome the Procurement Act
of 1949, which gives presidents the power to set contracting rules
that they think "promote efficiency and economy."
A federal judge in Maryland cited the law in 2009 when he upheld an
executive order from President George W. Bush that required
contractors to check the immigration status of their employees.
"Under longstanding statutory authority, presidents can issue
directives that facilitate the efficiency of federal contracting,
and courts have historically accorded some deference to presidential
policy determinations on this issue," Boris Bershteyn, a former
Obama regulatory official, wrote in an email.
Even the top Republican in the U.S. House of Representatives,
Speaker John Boehner of Ohio, told reporters on Tuesday that Obama
"probably has the authority" to issue the minimum-wage order for
federal contractors. One thing he could do only with congressional
approval is raise the minimum wage for most workers. On this he did
not propose going it alone.
"Wherever and whenever I can take steps without legislation to
expand opportunity for more American families, that's what I'm going
to do," Obama said in the annual speech.
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A HISTORY OF PRESIDENTIAL ACTION
U.S. history is filled with examples of presidents taking action
without congressional approval, only to provoke a rebuke from
lawmakers, voters or the courts.
President Harry Truman in 1952 seized control of steel mills to
prevent their closure, which he said would hurt U.S. troops fighting
in the Korean Peninsula, but the U.S. Supreme Court ruled that
Truman had acted unlawfully.
Obama has been provocative himself in using the inherent power of
the executive branch. In 2011, he and Attorney General Eric Holder
said they would abandon the courtroom defense of a law that
prohibited federal recognition of same-sex marriages.
And in an ongoing case, the Supreme Court is considering whether
Obama overstepped his authority when he made administration
appointments in a way that bypassed senators' usual power to vote on
nominees.
Tuesday's State of the Union speech fell short of that drama. He
said he would be willing to act without Congress to prevent mass
shootings, but he gave no specifics. He also referenced efforts to
reduce carbon pollution from power plants, but litigation in that
area would be nothing new.
Past Obama administration proposals about fuel efficiency standards
were largely supported by automakers and labor leaders, who said
higher standards brought greater regulatory certainty.
Obama said he would direct the Treasury Department to create a new
form of retirement account, but while he gave no legal basis for it,
it was not immediately clear who might oppose the idea enough to sue
over it.
Ilya Shapiro, a senior fellow at the libertarian Cato Institute,
said Obama's future executive actions were left either unclear or
unannounced.
"More details (and presumably more devils therein) presumably
forthcoming," Shapiro wrote in an email.
(Editing by Howard Goller and Jim Loney)
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