The two Dicks – Nixon and Cheney – had to fall back on the Unitary Executive Theory to justify executive action that was otherwise illegal. As demonstrated in tonight’s State of the Union speech, President Obama doesn’t need this theory because he’s not proposing anything illegal – he has full authority as the nation’s CEO to raise federal contractor’s pay. But his new domestic policy doctrine might be called the “Solitary Executive” because it is almost impossible to get any constructive legislation through Congress.
President Nixon famously told David Frost, “Well, when the president does it, that means that it is not illegal” with reference suppressing domestic dissent for the greater good of the nation’s security interests. Vice President Cheney used the same excuse in the Scooter Libby trial to justify his disclosure of classified information – again under the guise of protecting national security. Cheney, of course, wasn’t the president, and his Nixonian interpretation of Constitutional authority was lacking.
In tweaking the implementation of the Affordable Care Act or moving to raise minimum wage for federal contractors, the Right has charged Obama with taking executive action that exceeds his Constitutional authority. The Unitary Executive Theory would say “no,” but that theory misses the boat, and apparently only applies to Republicans anyway. The executive branch’s administrative powers, as delegated in many instances by Congress itself, make the Obama Administration’s actions perfectly legal.
The real problem for Obama is that since 2010, he has been unable to get Congress to pass any new law that actually helps, as oppose to hinders, the economic recovery. Obama passed the American Recovery Act (i.e., the fiscal stimulus bill) through a Democratic Congress in his first year in office in 2009. Once the Tea Party took control of the House in the 2010 mid-term elections, the best deal Obama could strike with John Boehner at the time was for mild stimulus in the form of tax cuts in December 2010. By 2011, the federal government began creating a fiscal drag on the economy with sequestration, tax hikes and no new stimulus. By default, the Federal Reserve, an independent administrative agency within the executive branch, has had to fill the gap with its monetary policy of quantitative easing – without which we would be back in recession.
The problem is that while loose monetary policy has kept the economy growing, its disproportionate benefits have gone to upper income, exacerbating income inequality.
As the president said this evening before the joint session,
“What I offer tonight is a set of concrete, practical proposals to speed up growth, strengthen the middle class, and build new ladders of opportunity into the middle class. Some require Congressional action, and I’m eager to work with all of you. But America does not stand still – and neither will I.
“So wherever and whenever I can take steps without legislation to expand opportunity for more American families, that’s what I’m going to do.”
Obama needs a little Solitary Executive action to level the playing field: from using the Environmental Protection Agency to limit power plant carbon emissions to further deferred action on immigration to keep the pressure up for comprehensive reform. His State of the Union proposals are a positive step in that direction.