President Obama's pledge to pursue "audacious" executive action during his final year in office is stirring a frenzy of speculation about what he might have up his sleeve.
White House chief of staff Denis McDonoughDenis McDonoughSunday shows preview: McMaster hits circuit for second straight week Obama chief of staff: 'The president cannot order a wiretap' Obama's chief of staff joins foundation with focus on jobs MORE this week said “audacious” executive actions on tap for 2016 are being carefully crafted to “make sure the steps we have taken are ones we can lock down and not be subjected to undoing through [Congress] or otherwise.”
A White House official was non-committal when asked about which specific executive actions the president might be considering.
“The president has laid out a number of issues he wants to work with Congress on, including approving the Trans-Pacific Partnership, reforming our criminal justice system, authorizing the use of military force against ISIL, tackling heroin abuse, addressing poverty, and supporting a moonshot to cure cancer,” the official said. “But the president has also been clear that he’s not going to hesitate to act when Congress fails to do so.”
Business groups say they fear the worst.
“Executive orders are very tough to deal with,” said Thomas Donohue, president and CEO of the U.S. Chamber of Commerce.
“I believe presidents ought to have executive power, but there are instances or times when it is abused and used basically to get around the Congress – not to deal with emergencies or particular sensitive issues that everyone sort of agrees on. You can assume that we will be very involved with every tool we have.”
Whether his moves are “audacious” or not, Obama is going to have to some tough choices to make in the months ahead.
The president has indicated he is focused on equal pay, campaign finance reform, gun control and closing the prison at Guantánamo Bay, among other things. But where he decides to take unilateral action is anyone’s guess.
Some advocates are pushing Obama to do something about the torrent money that has flooded the political system since the Supreme Court decision in Citizens United.
“We hope this is a foreshadowing of an executive order that would deal with secret money in our politics,” Lisa Gilbert, director of Public Citizen’s Congress Watch division, said about McDonough’s remarks. “We could see it as soon as the anniversary of Citizens United.”
The January 21, 2010 ruling in the landmark Supreme Court case allowed corporations and unions to spend unlimited amounts on politics, so long as they do not coordinate with campaigns or parties.
Ever since the ruling, critics have been calling on the Securities and Exchange Commission to issue a rule that requires corporations to disclose their political spending.
While Obama could only issue an executive order on political spending that applies to federal contractors, Gilbert said that still accounts for 70 percent of the nation’s largest 100 companies.
“I’m nervous,” said Alan Chvotkin, executive vice president and counsel of the Professional Services Council, which represents federal contractors.
In August, the council and three other groups that represent federal contractors sent a letter to Obama complaining that they have been treated like a “messaging board” for the president’s policy priorities.
At that time, the president had issued 13 executive orders that strictly applied to federal contracting. Some forced companies to pay employees higher minimum wages and report labor law violations.
“We know we had some short initial success,” Chvotkin said. “It was reported back to us that the letter was discussed at the senior levels of government, but I don’t think that gives us a buy for the whole year.”
Proponents of equal pay for women are also hopeful that the president will take action on their issue, particularly after he mentioned it in the State of the Union.
“I would love to see more of him making the federal government a model employer when it comes to equal pay,” said Lisa Maatz, vice president of government relations for the American Association of University Women.
“I would love to see him do an executive order ensuring Title IX compliance reviews are done government wide,” Maatz said, referring to the law that prohibits discrimination on the basis of sex.
But Maatz said she wants Obama to first complete a pair of executive orders he has already issued — one that requires federal contractors to report employee wages based on race and sex, and a second that forces federal contractors to show they’ve been following civil rights laws when procuring government contracts.
Regulatory advocates contend that pushing policies on federal contractors is the best way to create change in the private sector.
“It incentivizes everyone to do the right thing,” said James Goodwin, senior policy analyst with the Center for Progressive Reform. “If you have more and more people in a given industry doing the right thing, it becomes a competitive advantage rather than a competitive disadvantage.”
Other advocates predict the president will exert his executive power outside the world of government contracting.
“It really bothers the president that he hasn’t been able to shut down Guantánamo,” said Brad Bannon, a Democratic strategist.
“That’s why — since Congress obviously won’t move on it — I think Obama will try to do something to close it down on his own,” he added.
If Obama goes it alone, Republicans contend he would be defying a law passed by Congress that explicitly bars him from transferring Guantánamo detainees into the country. But Obama supporters, like Bannon, argue Article II gives the president the legal authority to decide not only where to put troops, but also where to hold prisoners.
Since the fate of an executive action will likely be left to the courts to decide, Bannon believes the odds are in Obama's favor.
“When it comes to national security issues, federal courts give the president a lot of leeway,” he said.
Jordan Fabian contributed to this report.