Obama to bypass Congress, weighing executive actions on housing, gays and other issues
By Zachary A. Goldfarb, Published: February 10
One of the first orders is expected this week, when the Obama administration will call for the creation of new standards on what critical private-sector companies should do to protect their computer systems from hackers.
It’s never too soon to be thinking about the next political campaign and the next set of candidates that will populate that campaign.
These and other potential actions suggest that Obama is likely to rely heavily on executive powers to set domestic policy in his second term. One White House official said that while the president does not see the actions as substitutes for more substantial legislation, he also wants to move forward on top priorities.
But the approach risks angering Republican lawmakers in Congress, who say they are leery of granting the executive branch too much power and have already clashed with Obama over the issue. In a ruling last month, a federal appeals court said Obama exceeded his constitutional powers in naming several people to the National Labor Relations Board while the Senate was on a break.
“It is a very dangerous road he’s going down contrary to the spirit of the Constitution,” Sen. Charles E. Grassley (R-Iowa) said in a recent interview. “Just because Congress doesn’t act doesn’t mean the president has a right to act.”
The administration declined to provide details on timing of the possible actions; one White House official said the moves to boost housing, retrofit buildings, offer same-sex protections or issue new environmental rules were not imminent. Obama may touch on some of the actions in broad terms during his State of the Union address Tuesday, but he is unlikely to lay them out in detail.
One of the more significant moves under consideration is in housing. Obama is weighing whether to use his executive authority to give more of the country’s nearly 11 million struggling homeowners a chance to refinance at today’s ultra-low interest rates, according to the Treasury Department and others in talks with the administration on the issue.
Obama already has used his executive powers to make refinancing easier for people with loans backed by government-financed mortgage companies Fannie Mae and Freddie Mac. But the new plan could extend the opportunity to people who are underwater on their privately backed mortgages, which have not been eligible for the same relief.
The plan, if adopted, would likely be aimed at homeowners who have otherwise kept up with their mortgage payments but have been unable to refinance because the loan against their home exceeds its depressed value. Many Republicans in Congress have balked at the idea amid concerns over the cost to taxpayers.
The White House is also reviewing whether the president should issue an executive order offering protections to gays and lesbians who work for government contractors. Obama decided against issuing such an order during the presidential campaign last year, disappointing many gay-rights activists.
In trying to slow climate change, Obama is considering acting through the Environmental Protection Agency to issue new rules governing carbon emissions by existing power plants, according to three people familiar with White House discussions. The move would face fierce corporate opposition but is among the top goals of environmentalists.
The executive order calling for new cybersecurity standards would apply to industries such as transportation that are regulated by executive branch agencies. It also would increase the amount of computer threat data that the government shares with companies.
Throughout his first term, Obama turned frequently to the use of executive powers in the national-security arena, pursuing a campaign to overturn Libya’s government and making use of drones to kill suspected terrorists overseas. Lawmakers of both parties have sparred with the administration this week over secretive anti-terrorism programs employing drone strikes and targeted killings.
Obama’s moves on domestic policies began more recently after he concluded that Republicans in Congress were unlikely to pass many of the major items on his agenda.
Under the slogan “We Can’t Wait,” Obama took actions beginning in late 2011 to boost the housing market, lower payments on student loans and delay deportation of young illegal immigrants. He also installed key officials in regulatory agencies without congressional approval, producing loud complaints from Republicans.
In the months ahead, some people close to the White House said Obama must weigh the prospect of making progress on his priorities with the risk that acting aggressively could hurt the chances for more substantial legislation on Capitol Hill.
“That has to be part of an analysis of what are his powers under the Constitution and statutes of the United States,” said John D. Podesta, a former chief of staff to President Bill Clinton, who used executive actions in the face of a hostile Congress in his second term. “I think given where he wants to go and where Congress has blocked and stalled and Republicans are recalcitrant to do anything . . . he’s going to move.”
In the realm of economic policy, Obama may expand a program — the Better Buildings Initiative — which seeks to hire workers to rehab federal and private-sector buildings to make them more efficient. Officials say the cost of the program is offset by energy savings.
On climate change, EPA is due this spring to issue final carbon-emission regulations for new power plants, using powers under the Clean Air Act. But Obama is also considering moving beyond that effort toward regulating carbon emissions from existing power plants.
A more ambitious plan to develop a market-based system known as “cap and trade” to control carbon emissions died in his first term, and appears unlikely to resurface soon.
On social policy, Obama is reconsidering whether to issue an executive order prohibiting federal contractors from discriminating on the basis of sexual orientation or gender identity. When he decided not to issue such an order last year, the White House said it would prefer to pass a law applying to gays and lesbians in the workplace.
But if Congress seems unlikely to act on the broader legislation — called the Employment Non-Discrimination Act — officials have signaled to people working on the issue outside the administration that the president would likely consider issuing an executive order, which can only affect government contractors.
Ellen Nakashima contributed to this report.