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On His Way Out, Obama Poised to Act on His Own Again

Citing "dysfunctional" Congress, aides say more executive actions possible

President Obama warns that Republicans could change judicial confirmation rules forever. (Photo by Joshua Lott/Getty Images)
President Obama warns that Republicans could change judicial confirmation rules forever. (Photo by Joshua Lott/Getty Images)

White House officials see little reason to believe Congress will have a productive run during President Barack Obama’s final months in office, forcing him to issue more executive actions on his way out.

Obama has left little to the imagination when it comes to his willingness to use his authority as president to enact policy changes when lawmakers refuse to act or become too stymied by partisan bickering to pass legislation. Before his final year even began, Obama urged his senior aides to keep searching for ways to get things done — with or without lawmakers’ help.

“I’m not going to rule out additional executive action on the part of the president,” White House Press Secretary Josh Earnest said last month. “What we’ve seen … is an utterly dysfunctional Congress.”

Translation: Some of Obama’s executive orders and actions could have been avoided had GOP lawmakers pushed legislation he could have signed. Republicans often respond by saying that the president is too liberal to work with on bills they could both support

[Out of Options, Obama Now a Bystander in Gun Debate]

So far, Obama has issued 249 executive orders, according to the American Presidency Project at the University of California, Santa Barbara. That’s fewer than George W. Bush’s 291 and Bill Clinton’s 364.

But his Republican critics say the substance of Obama’s executive orders has collectively had a greater impact — and that’s before his rules and regulations are factored in. The 44th president has issued orders and actions targeting hot-button issues like immigration, gun control, transgender bathroom use, abortion, and arms sales to Vietnam. He has also designated large swaths of land and seas as federally protected areas.

GOP members see a president who has repeatedly overstepped his office’s constitutional authority. One recently told Roll Call that any 11th-hour Obama orders or actions on major issues would likely “go right to the courts.”

Fall Forecast: The White House

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Experts like Diane Katz of the Heritage Foundation expect Obama to, in his own words, use his “pen to sign executive orders and take executive actions and administrative actions that move the ball forward.”

Rules and regulations 

Obama has been as active in this realm as any president, experts say. Other modern chief executives, including both Bushes, have issued more new rules during their final years in office, according to a Heritage Foundation analysis Katz helped conduct.

[House to Take Up Criminal Justice Overhaul in September]

That’s why she expects Obama will continue to issue directives on energy and environmental issues, as well as slap new rules on federal contractors. The administration recently finalized tougher emissions and fuel efficiency standards for medium- and heavy-duty vehicles and separately updated nutrition facts labels on packaged foods to make calorie counts and serving sizes more prominent.

Criminal justice

There remains widespread hope from the White House to Capitol Hill and among proponents that Obama will sign a bill containing policy changes on which Republicans and Democrats have long agreed, including giving judges more discretion when making sentencing decisions. But lots of work would be required, and Congress is set to take all of October off to hit the campaign trail, limiting time for floor debates and conference committee negotiations.

That could force Obama, who has long considered criminal justice policy changes a major legacy issue, to act alone. The administration last month said it would stop using privately run prisons after it concluded they were no safer or more effective than government-run facilities.

Paris climate pact

There is little gray area here. Obama formally joined the agreement to curb greenhouse gas emissions and implemented it over the weekend during a stop in China for high-level meetings and a G-20 summit.

The White House contends that the pact was written as an “executive agreement,” meaning it does not require the Senate’s approval that a formal treaty would. White House officials also contend that they pursued the Paris agreement within the intent spelled out by lawmakers.

Commutations and pardons

The president has commuted select criminal sentences and granted clemencies at a rapid pace, aiming to make a statement about the need for a soup-to-nuts criminal justice overhaul bill. So far, he has issued 673 sentence commutations, and 325 in August alone.

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“He’s done many more commutations than any other president, and I would expect that to continue,” said Mark Holden of Koch Industries, which is pushing for criminal justice changes. Justice Department data shows Obama has far outpaced modern presidents, with no one other than Lyndon B. Johnson issuing more than 100.

White House counsel Neil Eggleston used an Aug. 30 blog post to promise that Obama will continue issuing commutations of criminal sentences until he leaves office on Jan. 20. Obama has targeted individuals given “unduly harsh sentences under outdated laws for committing largely nonviolent drug crimes,” Eggleston wrote, signaling that they will continue.

Guns and Gitmo

Obama earlier this year acted on the former, and his aides have signaled there is little else he could do under his own authority. On the latter, sources involved in the debate and experts say the president’s desire to close the terrorist detention facility at Guantanamo Bay, Cuba, are hamstrung by a web of existing laws that would make it too difficult to do in just five months.

The House and Senate fiscal 2017 defense policy bills both include language on Guantanamo that the White House opposes.

Contact Bennett at Follow him on Twitter @BennettJohnT.

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