Obama administration officials are increasingly using regulation and litigation to bypass Congress, say free market advocates and social conservatives.
“It is outrageous,” said Dan Kish, vice president at the Washington, D.C.-based Institute for Energy Research and a former Capitol Hill staffer. “Like it or not, Congress has the power to write laws.”
But these critics also say little can be done about it before November 2012, especially because they’re getting no support from the liberal critics who once lambasted George W. Bush for ignoring domestic and international laws, and for releasing “signing statements” when he signed bills into law.
In June, immigration officials announced this they will no longer apply immigration law against illegal immigrants who are studying, who have family relations in the U.S. military, or who are caring for ailing relatives. In August, officials announced they would drop deportation procedures against up to 300,000 illegal immigrants who are now being held, but not suspected of having committed major crimes. Those who are released will get a work permit, even though national unemployment is at least 9.1 percent.
While under both Democratic and Republican control, Congress had rebuffed an alliance of Hispanic advocates, ethnic lobbies, employers and progressives seeking an amnesty for roughly 10 million illegal immigrants. Throughout 2010, Hispanic advocates also failed to win an amnesty for younger people, under the Development, Relief and Education for Alien Minors bill, known as the DREAM Act.
“This is being done because Congress didn’t pass the DREAM act,” which Obama wanted to boost his 2012 support among Hispanic advocacy groups, said Mark Krikorian, executive director of the Center for Immigration Studies think tank. (RELATED: Cantor calls for repeal of Obama administration’s ‘job-destroying regulations’)
“My sense is that the administration has the statutory authority to do this, because any law has to provide the executive with a certain amount of discretion,” he said. But Obama is “abusing a narrow authority that Congress gave him.”
On Aug 5, Education Secretary Arne Duncan announced that he would use his regulatory power to exempt state education agencies from the 2001 No Child Left Behind Act, providing they develop alternative education standards that meet his approval.
“There’s broad support for waivers … the outcry has been the conditions attached to those waivers,” said Mike Petrilli, an executive vice president of the Thomas B. Fordham Institute, a conservative education reform group. “That’s where [Duncan] will run into legal trouble … I don’t think he has the authority to attach conditions to waivers,” said Petrelli. “There nothing in the statute about quid pro quos.”
In June, Minnesota Republican John Kline, chairman of the House committee on education, demanded that Duncan explain his legal authority for the exemptions.
In February, amid increasing pressure from gay groups and voters, Obama’s appointees at the Department of Justice decided that 1996 Defense of Marriage Act is unconstitutional, and announced they would not defend it from a constitutional challenge.
The law, passed by a 342–67 vote in the House, sets a federal definition for marriage, and it is opposed by many progressives and gay advocacy groups, who say it puts the status of gay and lesbian relationships a step below heterosexual relationships. In 2008, Obama’s campaign promised to repeal the law, but Congress refused to do so, even when the House and Senate were under Democratic control.
“The president is making an end run [around the law] by … refusing to defend it in court,” said Maggie Gallagher, chairman of the National Organization for Marriage. In May a Public Opinion Strategies poll showed that 62 percent of respondents agreed that “marriage should be defined only as a union between one man and one woman,” while 35 percent disagreed.
In March, House Speaker John Boehner took the unusual step of hiring a team of lawyers to defend the law in court.
The administration is using bureaucratic procedures to constrict legal energy extraction the Democratic-led Congress failed to pass the “cap and trade” law to regulate carbon-dioxide, said Kish. Environmentalists “see this presidency as their one chance to reach their green-energy nirvana and insert themselves into every aspect of the economy,” he said. “For a bunch of lawyers, all they seem to do is figure out ways to get around the law,” Kish said.
Democrats have welcomed the administration’s regulatory and legal steps. In August, for example, democratic leader Rep. Nancy Pelosi said the administration’s decision to end the deportation of 300,000 undocumented immigrants was “another positive step to strongly enforce our nation’s immigration laws.”
Progressive groups have rarely protested the administration’s efforts to bypass Congress on matters they support. “The notion that the president would not enforce, or refuse to abide by certain parts of legislation [is something] that we have not seen, at least to my knowledge, from President Obama,” Miami lawyer Neal Sonnett told the DC. In 2006, Sonnett chaired an American Bar Association panel that decried what it said was Bush’s improper use of “signing statements “to express opposition to elements of bills that he signed them into law.
Republicans and their allied advocacy groups say they’re frustrated by the administration’s use of regulations and the courts to bypass laws, and by liberals’ passivity, but don’t see any fix except a Republican in the White House.
Aside from a GOP win in 2012, said Krikorian, “I don’t think there is any remedy.”