Category Domestic Policy

How Much Has the Obama Administration Defied the Law?

Danny Vinik Leave a comment

It’s a constant critique from the right that President Obama has ignored and flouted federal law more than any other administration in history. From not deporting DREAMers to the delaying the employer mandate* to not officially labeling Egypt’s coup a “coup” to today’s announcement by Attorney General Eric Holder that he’ll instruct prosecutors to leave out the amount of a drug found on low-level, non-violent criminal so that mandatory minimum laws are not invoked, the Administration has walked a tight line with regards to the law. Today’s announcement a major step for the Justice Department and has been greeted by applause by liberals. But is it legal?

As someone who is relatively new to political journalism, my biggest question is whether conservatives are right that the Obama Administration has ignored the law and used selective enforcement of different laws to advance its own agenda more than any other administration before it. That’s a pretty big charge – particularly after the Bush years – and if it’s right, it’s something we need to look at more closely. I’m going to look into this more, but I want to hear more experienced journalists chime in on this question. Those reporters who have been in DC for decades and have been around numerous administrations should be able to put this in context. The fact that I haven’t heard much from the MSM on this has led me to believe that the Obama Administration is, in fact, not ignoring the law more than any before it. But the last few weeks have seen the White House implement a couple of policies that should at least make us ask the question.

On the other hand, if conservatives are right and Obama has defied the law more than any before it, that’s a scary precedent. The combination of both President George W. Bush’s and President Obama’s disregard for federal law, plus a massive expansion of the surveillance state, is a scary path to be on. It’s bipartisan approval to ignore Congress. That’s not okay. The common saying is that the current Congress can’t bind future Congresses. After all, a future Congress can just pass a new law that overrides a past Congress. But the same cannot be said of the Presidency. The executive branch IS bound by the current Congress and only the current or a future Congress can change that. The President can’t simply decide to ignore past laws, but that seems to be exactly what President Obama has been doing.

I don’t have any answers here, but I want to lay out some questions:

  • Is this Administration’s selective adaptation of laws new?
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  • If so, is it acceptable? Are we comfortable with this level of Executive Branch autonomy?
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  • If not, is it still large enough to warrant increased coverage?
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  • After the last two administrations, how do we stop the White House from falling down “the slippery slope?” What safeguards can we erect so that no White House takes its power too far?
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  • If not, is it still large enough to warrant increased coverage?

The President’s refusal to label the coup in Egypt as a coup was particularly striking to me. Under any ordinary definition, what happened in Egypt was a coup. Except if the Administration had officially labeled it as one, it would have been required by law to cut off aid to Egypt. Of course, it had no desire to do that so it just refused to label it a coup and aid has continued. That’s not acceptable. I’m a proponent of foreign aid and understand its importance in the Middle East. But laws are laws. If Obama wanted aid to continue, he should have taken his case to Congress. Liberals may applaud Obama for finally acting proactively, but how would they react if a Republican President had ignored a law like that? They would’ve been furious and rightfully so. Presidents need to adhere to laws, both those passed during their administration and before it.

I know President Obama is fed up with the do-nothing Congress he’s stuck with and wants to find any means to sidestep it. unfortunately, the founders designed our Constitution to prevent exactly that so those workarounds are few and far between. Are we okay with the President stretching the definition of his authority when Congress is gridlocked? It’s yet another question we need to look at more closely, because over the past couple of years, the Administration has made a number of bold policy plays that are borderline, if not outright, illegal. It’s time we start asking ourselves how much of this is okay.

*Sarah Kliff had a good post on Wonkblog analyzing whether the Administration’s delay of the employer mandate was legal. It’s not entirely clear

Defunding Obamcare Doesn’t Change Odds of Immigration Reform

Danny Vinik Leave a comment

Byron York, the conservative reporter for the Washington Examiner, penned a piece on Monday about how Tea Party activists have focused more on defunding Obamacare than opposing comprehensive immigration reform during the August recess. York notes that this could be a major boon for immigration reform’s chances of passing the House:

GOP activists should also keep in mind what they can change and what they can’t. And at the moment, the thing they can change is not Obamacare but immigration reform.

If August goes quietly on the immigration front, some Republican lawmakers may return to Washington with the sense that voters back home don’t really mind that immigration reform goes forward. And then it will. If, on the other hand, lawmakers hear expressions of serious opposition at town meetings, their conclusion will be just the opposite. And reform will likely go down to defeat.

So Democrats don’t really mind if Republicans use up all their grass-roots energy railing about Obamacare. It’s already the law. What would be a problem for Democrats, and for some pro-reform Republicans, is if the GOP grassroots concentrated its fire on immigration reform. That could well mean the end of President Obama’s top legislative priority for his second term.

The Washington Post’s Greg Sargent and Washington Monthly’s Ed Kilgore picked up on this as well today, but I just can’t see any way this happens.

There are really three possible ways that immigration reform passes:

  1. A majority of Republican House members support it so Speaker John Boehner can bring it to the floor without breaking the Hastert Rule. This would require at least 117 House Republicans to support the legislation. Boehner will only have those votes if he brings a very conservative bill to the floor. But such a bill would receive no Democratic support and would also lose a number of Republicans. With only 234 House Republicans, the Speaker can only lose 16 of them or else the bill won’t pass. This puts him in a bind. Any bill that receives majority Republican support will lose too many moderate Republicans to pass.
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  2. Boehner breaks the Hastert Rule and passes immigration reform with strong Democratic support. This would almost surely end his speakership and is thus highly unlikely to happen.
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  3. Seventeen House Republicans agree to sign a discharge petition with all House Democrats (or a couple more House Republicans and a few less House Democrats) so that the bill is automatically brought to the floor, without support of House leadership. This would be an incredibly risky move for any Republican. It would antagonize the top Republicans and likely lead to a primary challenge. Thus, it’s also highly unlikely to happen.

Given those three possibilities, does less pressure from the base change anything? Maybe a bit. A few Congressmen may feel more willing to vote for the bill than if they faced major pressure during the recess. But let’s assume options two and three aren’t happening. That means that a lot of Republicans will have to support a moderate bill so Boehner doesn’t break the Hastert bill, but it still receives Democratic support to pass. The Tea Party hammering away at defunding Obamacare may convince a couple House Republicans that supporting moderate legislation is acceptable. But I can’t see how it will convince enough of them.

Not to mention, the reason Tea Party activists aren’t up in arms over immigration reform is that, as York writes, they think they’ve killed it already. If it comes back from the dead, they aren’t going to sit around and continue yelling about defunding Obamacare (well, they’ll still do that some surely). They’re going to scream at their representatives to oppose the bill.

How many of those House Republicans who supported the bill when they didn’t hear opposition to it during the August recess are still going to support it when that opposition does materialize? The answer: Not many.

We’re Having the Wrong Conversation About Uncertainty

Danny Vinik 1 Comment

Imagine the following situation: You’re the CEO of a small business with one store and just five other employees. You survived the Great Recession and business has been slowly improving. As the economy improves, you’re thinking about expanding by opening another store with five more workers. Then you hear the President’s State of the Union Address calling for a higher minimum wage. This scares you. A higher minimum wage would raise your costs and prevent you from opening that new store (this is how a minimum wage hurts job growth). Now, it’s the beginning of August and no minimum wage bill has passed. The President isn’t pushing it particularly hard and Congress is focused on other bills. Do you open the second store?

It’s a tough call. It would just about wreck your business if you expand and then Congress passes a higher minimum wage. On the other hand, you’re leaving profits on the table for every day you don’t expand and the minimum wage stays the same. That right there is policy uncertainty and it is what Republicans have been yelling has been holding back the economy for years.

Today, Jim Tankersley at the Washington Post and Kevin Drum at Mother Jones push back and basically declare uncertainty a farce. Here’s Drum:

Republicans wanted to blame the sluggish recovery on mountains of red tape from the business-hating Obama administration, and the press played along. This means that “uncertainty” got a lot of media attention, which in turn means that if you have an “uncertainty index” based partly on media mentions, it would have shown persistent elevation during 2010-12, the heyday of the uncertainty campaign. Sure enough, that’s exactly what it showed:

….

As we knew all along—and as the media should have known all along—”uncertainty” was just an invented partisan talking point. It no longer serves any purpose, so now it’s gone. But the sluggish recovery is still with us.

Roosevelt Fellow Mike Konczal proved last year how ridiculous uncertainty indexes are. It’s more media manipulation than anything else. But this doesn’t mean that uncertainty isn’t real. The simplified example above demonstrates how it works on a theoretical level. But saying that uncertainty is holding back the recovery doesn’t imply that one party or the other has the correct policy prescription. In the above example, you can remove the uncertainty in two different ways: passing a higher minimum wage or the President declaring he is no longer interested in pushing for it. In either choice, the uncertainty disappears.

This isn’t how Republicans described uncertainty as holding back the recovery. For them, uncertainty was excessive regulations and new rules from the Obama Administration. But this is just one factor in the uncertainty debate. There is economic uncertainty. Who knows what the next jobs report will look like? There’s also fiscal uncertainty. The looming potential government shutdown may be holding firms back as well. Same with corporate tax reform which is slowly moving forward. Businesses must take all of this into account. The more threats to shut down the government, breach the debt ceiling, rewrite existing regulations and pass major policies, the more businesses are going to be hesitant to make major decisions. That’s how uncertainty affects the economy, but it’s largely not the Obama Administration’s fault. That’s where Drum is right: it became a partisan talking point in the last election.

So instead of having a smart discussion on how we can actually reduce uncertainty, Republicans fostered a partisan belief that the uncertainty that was really holding back the recovery was the Obama Administration’s regulations and nothing else. Not the economy. Not Congress. It was all on the Obama Administration.

So is it any surprise that as uncertainty has decreased (according to uncertainty indexes meh), liberals are using it to show that uncertainty wasn’t holding back the economy? Tankersley demonstrated this aptly:

The index seeks to measure the effect of policy uncertainty, including pending regulations and expiring tax provisions, on the economy. As you may have heard once or twice over the last few years, many conservatives blame uncertainty for holding back hiring and growth in this recovery. Those lawmakers love to cite this index as proof of elevated uncertainty.

According to the index, the decline of uncertainty this year is clear*.

And the hiring boom that was supposed to follow? Well…

Maybe hiring would be significantly less if uncertainty was at 2009 levels. Maybe reduced uncertainty has offset some of the effects of the payroll tax increase earlier this year and has been an important factor in our recent meager job growth. It’s tough to tell for sure. But no matter what, the facts are that uncertainty indexes show reduced uncertainty and job growth is weak. So liberals have jumped on this to show that reduced uncertainty and job growth don’t go together. This continues to obscure the debate as uncertainty is a drag on growth. But it’s not just regulatory uncertainty. It’s much more. Republicans need to admit that. Democrats need to admit uncertainty exists. And uncertainty indexes need to go away. Then maybe we can have a conversation about how to actually reduce it. Right now, it’s a partisan mud-flinging contest with hand-picked stats and a bogus index used to support them. isn’t that just great?