Five Ways Obama Is Circumventing The Legislative Branch

June 29, 2011 Federal, Political News No

The Heritage Foundation

For all of candidate Barack Obama’s campaign rhetoric promising to respect
Congress’s authority to draft the nation’s laws, President Obama has
demonstrated a persistent pattern of circumventing the legislative branch via
administrative fiat whenever his agenda stalls. And though one of the Obama
campaign’s legal advisers cautioned
a President who would “take the law into his own hands and shred it
when it’s convenient,” he has done just that time and time again.

The Obama Administration generally employs one of two strategies to legislate
without—and often in spite of—congressional action: (1) administrative decree
establishing a new federal rule, or (2) a refusal to enforce existing federal
law. In five separate policy areas, the President and the federal agencies under
his command have spurned congressional authority to achieve Obama’s

1. Environmental Regulation: President Obama has made it his
mission to impose economy-killing environmental regulations on America in spite
of clear congressional opposition. Take the White House–backed cap-and-trade
bill, which would have created a market for “carbon credits” that businesses
would have to trade in order to emit carbon dioxide and other greenhouse


The measure passed the House in 2009 but was defeated in the Senate.
Undeterred, the Obama Administration sought to ram its agenda into law without
congressional approval. It managed to classify
carbon dioxide as a “pollutant”
under the Clean Air Act, thereby granting
the Environmental Protection Agency the authority to regulate its
emission—despite warnings even from Members of Congress who wanted to regulate
carbon emissions but recognized the problematic nature of doing so without
congressional approval.

2. Labor Law: Expanding powerful labor unions is another
Obama Administration objective. On June 21, the National Labor Relations Board
(NLRB) announced
to dramatically reduce the time to conduct unionization elections.

But in 2009, the Senate moved in the opposite direction. It removed the “card
check” provision from the misnamed “Employee Free Choice Act,” effectively
sinking a measure that could have dramatically increased union membership by
rescinding workers’ rights to a secret ballot election for union

The NLRB’s new rule will reduce the length of elections from about six weeks
to 10–21 days, thereby limiting employers’ abilities to present their own cases
against unionization to workers—and making the formation of a union far more
likely. Increased unionization was always card check’s purpose. The NLRB is now
attempting to achieve the same goal without Congress’s approval.

3. Immigration Law: On immigration policy, the Obama
Administration has not even waited for congressional action before charting its
own legislative course. In May, Democrats reintroduced the DREAM Act—which would
provide a path to citizenship for illegal immigrants who came to the United
States before they were 16—after the lame-duck Congress failed to pass it late
last year.

But rather than waiting for Congress to act, officials at Obama’s Department
of Homeland Security have instructed Immigration and Customs Enforcement agents
and attorneys to exercise “prosecutorial
” for illegal immigrants who have attended school in the United
States, meaning far fewer such illegal immigrants will be prosecuted and
deported. The agency cited a shortage of resources, but the decision amounts to
a de facto implementation of the DREAM Act.

4. Selective Enforcement of Federal Law: Rather than push
Congress to repeal federal laws against marijuana use, Obama’s Justice
Department decided in 2009 that it would simply
stop enforcing those laws
. Proposals to legalize marijuana at the federal
level consistently fail to win congressional approval, but the Obama
Administration decided to implement its agenda in spite of that lack of
legislative support.

The Justice Department again employed this tactic in February when it
announced that it would no
longer enforce another federal law
: the Defense of Marriage Act. The
Administration did not agree with the law, so rather than attempting to repeal
it via the standard legislative channels, it decided to ignore it.

5. Regulating the Internet: Obama’s Federal Communications
Commission (FCC) decided late last year to assume authority over Internet
regulation despite a ruling by a federal appeals court explicitly
the commission that authority. In contradiction of the court’s
ruling, the FCC voted 3–2 in December to pass the first-ever federal regulations
on Internet traffic. The House has voted
to block those regulations
, but Obama has pledged to veto any such

More Bureaucratic Legislating Ahead: All of these examples
demonstrate a striking lack of respect for the role of the legislative branch in
American government. Despite paying lip service to Congress’s constitutional
role as the sole source of the nation’s laws, the Obama Administration has
ignored Congress wherever the people’s representatives have declined to codify
his agenda.

Nor is there any sign of this trend abating. Even now, the President is
considering a number of proposals that would advance his legislative agenda
without congressional consideration or approval, including re-regulation
of campaign finance laws
to circumvent a Supreme Court decision and waivers
of the No Child Left Behind law
in the face of congressional inaction.

Following the November elections, when President Obama’s party lost control
of the House, Obama told America that where
he can’t legislate, he will regulate
. And that seems to be this
Administration’s modus operandi: If Congress refuses to abide by
Obama’s agenda, the President’s bureaucratic machine will make its own laws.