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Will Obama Issue Executive Action on Cap-and-Trade?

Inhofe. (Photo By Bill Clark/CQ Roll Call)
Inhofe. (Photo By Bill Clark/CQ Roll Call)

The Obama administration is refusing to make his final year in office as uneventful as Republicans would like. In fact, lawmakers expect executive action on everything from terrorist detention to campaign finance to environmental issues.  

One possibility is an executive action setting up a carbon cap-and-trade system, says Senate Environment and Public Works Chairman James M. Inhofe, R-Okla. President Barack Obama “has legacy things and he doesn’t have as much time as he would like to have,” Inhofe said in an interview. “Cap-and-trade and closing Gitmo, those are the things he wants to do.”  

“If it doesn’t work through regulation,” Inhofe said of Obama’s desired carbon-reduction effort, “executive action is all that’s left for him.”  

Installing a system to cap carbon emissions and give companies incentives to emit below their allocated carbon limits has been a goal of Obama’s since before he took office. But it also has been a political dead end, with some moderate Democrats joining Republicans in 2010 to sink an Obama cap-and-trade proposal.  

To GOP members such as Inhofe, such a system  constitutes a national energy tax because, they argue, companies would pass the cost of required carbon permits onto customers.  

But some sources expect Obama likely would not stop with cap-and-trade, and predict action on other environmental issues about which he feels strongly.  

Then there is the expected two-step dance surrounding the president’s desire to close the terrorist detention facility at Guantánamo Bay.  

First up will be a Pentagon-crafted closure plan, which could be submitted to Congress any day. After that, since the proposal will be dead on arrival due to staunch GOP opposition, the White House is expected to take some kind of action on its own toward drastically reducing the prison’s population or shutting it down without lawmakers’ blessing.  

“This is a case where the law says what the president cannot do,” former Senate Majority Leader Trent Lott, R-Miss., said in a telephone interview, referring to years of congressional restrictions on closing the prison contained in defense policy bills that Obama has signed into law.  

“If he uses an executive order, I think McCain and others will take him to court,” Lott said. “And I think he’ll lose.  

Republican’s ire over Obama’s use of his executive powers appears tied less to the number of instances in which he has acted alone and more tied to the kind of politically charged issues that have been the subject of his actions.  

So far, Obama has issued 228 such orders, according to the American Presidency Project  at the University of California-Santa Barbara. That’s fewer than the 381 issued by GOP hero Ronald Reagan and the 291 used by George W. Bush, another GOP chief executive. Among recent Democratic presidents, both Bill Clinton (364 executive orders) and Jimmy Carter (320) turned to executive orders more often than Obama, according to the UCSB data.  

Ever since Obama vowed recently to “leave it all on the field,” and his Chief of Staff Denis McDonough  predicted a number of “audacious” moves in his final year in the White House, some Republican lawmakers have renewed their threats of immediate legal action.  

A senior administration official said Obama has “laid out a number of issues he wants to work with Congress on.” That list includes some items that appear to need congressional authorization or lawmakers’ allocation of resources, including congressional approval of a sweeping trade pact with Asian countries, authorizing the fight against the Islamic State and funding Obama’s proposed “moonshot” to cure cancer.  

Other initiatives the senior official mentioned — changing the criminal justice system and addressing heroin abuse and poverty — may not require congressional action.  

“The president has also been clear that he’s not going to hesitate to act when Congress fails to do so,” the senior administration official said. “The president wants to make sure his administration is doing everything possible to advance the national security interests of the country and to support hardworking families across the country.”  

But even the few Republicans who appear allied with him on certain issues continue threatening to sue over already issued and potential executive actions.  

“All of us take an oath to uphold the Constitution of the United States,” said GOP Sen. John McCain of Arizona, who favors closing Guantánamo and supports campaign finance changes. (The New York Times reported recently that the White House is seriously considering an action on the latter.)  

“What he does is he gives ammunition to the opponents, and then they have great difficulty when it comes time to sit down and work on things,” McCain said in a brief interview. “If he’s going to use an executive order [on campaign finance changes], it’s probably going to have to go right to the courts.”  

When asked what’s different about the 44th president’s solo moves, McCain said previous Oval Office-dwellers’ actions were “not like this.” He said a big difference is Obama has “bragged about it.”  

Speaker Paul D. Ryan, R-Wis., said, “The president’s executive overreach has undermined the Constitution and damaged the people’s trust.”  

The U.S. Supreme Court says it will hear a challenge to Obama’s solo move on immigration, which is intended to protect about 5 million undocumented individuals from being deported. And Attorney General Loretta Lynch told a Senate panel that his moves to tighten gun-control laws are legal.  

Obama’s Senate Democratic allies, such as Claire McCaskill of Missouri, note that the partisan bickering over executive actions is nothing new: “The party that’s not in the White House always hates it. It’s as predictable as the sun coming up.”  

Contact Bennett at and follow him on Twitter @BennettJohnT.

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