The Power of the Pen

The run‐​up to Tuesday’s State of the Union seemed downright ominous for those of us opposed to rule by presidential decree. “I’ve got a pen and I’ve got a phone,” the president warned uncooperative legislators: “we’re not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help they need.” “You have to swerve really hard to the executive powers at a time like this,” a senior administration official told the Washington Post.

Obama would, Press Secretary Jay Carney explained, “work with Congress where he can, [but] bypass Congress where necessary,” because 2014 was going to be “A Year of Action.” (Last year’s SOTU slogan was “Let’s Get It Done,” but I guess we didn’t git ‘er done).


Yet the unilateral actions mentioned in Tuesday’s speech are mostly Clintonian smallball: new “innovation centers”; expanding SelectUSA; a Biden‐​led review of federal job training; jawboning CEOs about unemployment, etc. (though I am curious where the president’s supposed to get the authority to conjure new retirement savings accounts into existence…)


Obama also issued a veiled threat that “with or without Congress,” he’d move forward on gun control. But it’s not much of a threat if last year’s list of 23 executive actions on guns is any indication. Contra the excitable Rep. Steve Stockman (R‑TX), nominating a new ATF director and “review[ing] safety standards for gun locks and gun safes” do not “an existential threat to this nation” make.


All in all, the executive action items in the 2014 SOTU weren’t nearly as menacing as the hype. ““Stroke of the pen, law of the land,” kinda… lame.

The biggest‐​ticket item on the SOTU list was the president’s announcement that he will “issue an Executive Order requiring federal contractors to pay their federally‐​funded employees a fair wage of at least $10.10 an hour.”


Can he do that? Maybe, maybe not.


Per the Congressional Research Service’s analysis of “Presidential Authority to Impose Requirements on Federal Contractors” [.pdf]:“Courts will generally uphold orders issued under the authority of [the Federal Property and Administrative Services Act] so long as the requisite nexus exists between the challenged executive branch actions and FPASA’s goals of economy and efficiency in procurement.”


It’s hard to see how raising federal contractors’ labor costs serves the goal of taxpayer “economy,” but there’s longstanding caselaw upholding executive‐​branch procurement policies, like affirmative action, that could increase the costs of federal contracts. Even in striking down a 1995 Clinton executive order barring federal contracts for companies hiring permanent replacements during strikes, the DC Circuit “did not suggest that the order exceeded the President’s authority under FPASA and even reaffirmed interpretations of the President’s broad authority to issue executive orders in pursuit of FPASA goals of economy and efficiency … even those orders that ‘reach beyond any narrow concept of efficiency and economy in procurement.’”


If Obama’s “fair wage” executive order survives a challenge, its impact will be fairly limited. Since most employees of federal contractors earn more than the elevated wage, and since the order will only apply to future contracts, it will likely affect some 200,000 American workers in a workforce of over 150 million. Still, spending on federal contracts is roughly 4 percent of GDP. Excessive judicial deference in this area would give the president broad, unilateral power to make social and economic policy through federal procurement.


But he already has a great deal of unilateral power, thanks to the relentless expansion of the administrative state. The administration has become increasingly bold in “governing by waiver,” as with its decision, last summer, to delay implementation of Obamacare’s employer mandate via royal dispensation, and in contravention of the law. As always, some of the most troubling abuses are in the national security arena, with the president’s tortured interpretations of the PATRIOT Act and the 2001 AUMF to justify bulk data collection on Americans and new fronts in the ever‐​expanding war on terrorism.


The most menacing aspects of executive unilateralism got short shrift in the speech, and they don’t involve guns or federal contracting. “I’ve got a pen, and I’ve got a phone”: If Obama really wanted to be intimidating, what he should’ve said was: “I’ve got an autopen, and I’ve got a drone.”