A Republican takeover of the House will make Capitol Hill a much less relevant place for President Obama, and is likely to turn the administration’s focus toward working through federal agencies and regulation — which it can do unilaterally — rather than trying to pass new legislation.
Opponents of the Obama administration’s agenda said they are shifting their attention away from the legislative arena and toward the regulatory field of battle.
“Right now we see the next two years, the battles moving from Capitol Hill probably to the regulatory agencies,” said Randel K. Johnson, senior vice president at the U.S. Chamber of Commerce.
In one sense, Obama and congressional Democrats don’t need to pass any more major pieces of legislation. Having passed a massive overhaul of the health care system and financial regulation, they will have plenty to do – and plenty they will be able to do – simply in writing regulations and rules to implement those laws.
The Environmental Protection Agency is also planning to regulate carbon emissions, in the absence of a bill written by Congress to do so. That figures to be a third major avenue of action for the Obama administration no matter who controls Congress.
And the fourth avenue is labor law, where the Obama administration shares many of the same goals as organized labor, which is also one of its biggest sources of political and financial support.
“With the slowing of the labor/employment agenda on Capitol Hill, the administration is utilizing the regulatory agencies to implement its agenda,” read a U.S. Chamber report released this past week.
Vin Weber, an influential Republican lobbyist, said Republicans on Capitol Hill are gearing up for a major confrontation with the administration over its regulatory approach.
“They could attempt to be conciliatory and try move to the middle … or you can believe that they really believe they are a transformational presidency and they’re just going to carry on through a regulatory apparatus or regulatory approach what they’ve done the last two years with a legislative approach,” Weber said in an interview.
“Most Republicans believe that’s what they’ll do, that they’ll try to be as aggressive in transforming policy through the regulatory approach as they were through the legislative approach,” Weber said. “So Republicans get all this. But they’re not gonna just sit back and watch and do nothing about it. They’ll fight back.”
The Chamber’s report included a chart showing numerous appointees with “long standing ties to organized labor” in senior positions at the Department of Labor, which they said raises questions about whether the agency will be fair toward employers.
A Department of Labor spokeswoman declined to comment. But the president’s strong alliance with organized labor was on display Monday as he flew to Milwaukee, Wisconsin to speak to several thousand union workers at the annual “Laborfest” celebration.
“A strong economy needs a strong labor movement,” said Obama, referring to the rally’s organizers in the AFL-CIO as his “brothers and sisters.”
The Chamber report also focused on an area they call “sub-regulatory” initiatives, which they said are policies carried out by agencies without public vetting or congressional approval.
“Often, these campaigns begin as initiatives to ‘educate’ workers about their rights or employers about their duties under existing law, but result in greater enforcement, increased litigation and higher penalties against employers,” the report said. “Of course, regardless of the merits of the underlying challenge, employers must spend thousands of dollars in defending themselves.”
The Chamber report listed 16 substantive such sub-regulatory programs currently in place. The “We Can Help” program, for example, was launched by the Department of Labor, after meetings with labor officials, employee rights groups, and representatives of the plaintiff’s bar. The Chamber noted that the program has not yet created any new procedures or rules.
In the realms of health care and financial regulation, the twin bills passed within the last year establish sweeping rule-making powers for federal agency officials in Washington. The health care bill has handed significant new authorities to the Department of Health and Human Services, while the financial regulation bill established an entirely new federal bureaucracy, the Consumer Protection Agency, with broad powers to oversee private enterprise.
Most of the rules and regulations under these two bills have yet to be written or disclosed publicly.
The White House declined to comment on whether their energy and focus will turn next year to establishing a regulatory regime in lieu of passing legislation. But Democratic allies said the president would be well within his rights to do so.
“The president has vast executive and regulatory authority, and he should use it. It will be amusing when Republicans who supported Bush authorizing torture by executive order suddenly find it outrageous for Obama to, say, regulate pollution by EO,” said veteran Democratic strategist Paul Begala, who was an adviser to former President Bill Clinton.
But Karl Rove, who advised former President Bush throughout a presidency dominated by questions about executive powers, said that while “the president’s field of action in foreign affairs is broad, it is much more limited and at risk of congressional restraint in the domestic arena.”
This, Rove said in an e-mail, is where Republican control of the House would be a big deal.
“Rules can be overturned or blocked by congressional action. They can be tied up or sued in court. Agencies can be defunded or their budgets crimped. Executive branch officials outside the White House can be called before Congress to explain,” he said.
Weber laid out the coming clash in more detail.
“If you really want to fight the regulatory approach, the money bills originate in the House of Representatives. You simply put language in the money bill for whatever agency is doing the regulating, saying, ‘No money in this bill shall be used to implement regulation xyz,’” Weber said. “ The president can decide to sign the bill or not sign the bill, but that’s the kind of confrontation you’ll have if the administration gets too aggressive in its regulatory approach.”
“Also, hauling people up to testify, that’s going to happen anyway,” he said.