Playing Pretend

Tonight is the State of the Union address. In our day, as usually, the media were projecting the main thrust of it days ahead of time. We were told that President Obama, whose ability to govern has been neutralized by the paralysis of the legislative branch, will announce initiatives in 2014 he is able to carry out without legislative backing. Thus he will act administratively.  

But it is well to remind ourselves that important actions always involve some kind of compelling force—and the expenditure of money. All matters left to the President’s sole discretion tend to be of a minor nature. The Constitution, Article II, Section 2, grants him command over the military—but not declaration of war. He may also “require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in cases of Impeachment.” He “shall [also] have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” This part of Section 2, however, is now being reviewed by the Supreme Court which will decide “what is is,” i.e. what “the Recess of the Senate” actually means—seeing that the Senate has been playing games and pretends to be in session when it actually is not. Finally, in Section 3, the following words appear: “he shall take Care that the Laws be faithfully executed.” What little freedom the President possesses, administratively, lies in that phrase. When Congress has not been meticulously detailed in specifying exactly what the President has to do, the President is free to interpret the vagueness. Let us say that some law requires that regulations be issued on, say, toxic gas emissions. In that case, up to a point, it is up to the President to define what “toxic” means and then to lay down in detail how that gas is to be regulated.

Congress sometimes, pretending to be regulating something, to satisfy a noisy constituency, will pass a law requiring that the President shall issue regulations that have no real power. Such was the case in the Resource Conservation and Recovery Act (RCRA) a long time ago (1976). It demanded that the EPA promulgate “recommended guidelines” for the disposal of solid waste. These guidelines had no teeth. Nonetheless, they were part of the Act. I was then at EPA. We largely ignored this requirement of the RCRA. The process for promulgating “guidelines” was just as lengthy and onerous as issuing real “regulations.” It took months of work, publication in the Federal Register, public meetings, publication of comments, and a long process of answering each comment. So we “neglected” these guidelines until we were sued by a consortium of environmental activists.

These activists, in turn, sued not because they wanted guidelines but because they wanted regulations. But until the guidelines were available, they could not pressure Congress to revise the RCRA to turn them into regulations. This, you might say, is the “glory of democracy” up close and personal. Despite our vast effort to publish guidelines, no regulations ever followed—because Congress didn’t want to do it.

It the President can be sued because he doesn’t do something, he can be (and very often is) sued because he does. This is happening in countless cases every year. The processes drag on and on. Their chief merit, it seems to me, is job-creation, creating jobs for lawyers. But, in these latter days, even that seems to be flagging. Just the other day I saw a story about graduating lawyers having problems finding actual jobs…

The President’s intention, therefore, to use his oh so limited administrative powers to lift employment, curb poverty, implement health care, and to solve the immigration problem will, if minorly successful, no doubt still be under litigation after he has retired and Hawaii is building the Obama Presidential Library.