Republicans are bracing for an avalanche of edicts from President Obama as soon as the constraints of the midterm elections are over.
Increasingly, conservatives worry they face two years of a diminished president who views a full-court progressive push as his best chance to establish a lasting legacy.
It was Obama himself, after all, who announced last month that he would delay unilateral implementation of some form of amnesty for the undocumented until after the midterms.
The transparently political nature of that decision — White House press secretary Josh Earnest conceded Republicans would have made the issue "more central to their campaign," and House Speaker John Boehner denounced it as "raw politics" — left many voters pondering how many other directives might be pending on the president's Resolute desk.
As Politico recently reported, the impact of Obama's much-touted "year of action" has been modest so far, in part because swing-state Democrats are nervous about any extra baggage when voters step into polling booths in November.
"He is working with what he's got, which is a pretty bad hand," New York University professor Paul C. Light told Politico. "If you say it is the 'year of action,' it is really better to say it's the 'year of the best-we-can-do action.'"
But once freed from electoral repercussions, conservatives fear the nation could witness a deluge of presidential fiats and rule-makings unseen since FDR. Judicial Watch president Tom Fitton recently told Newsmax the president is "contemptuous of the constitutional prerogatives of Congress," adding: "This is the catch-me-if-you-can president. And Congress, because of its lack of ability to conduct meaningful oversight, is both unwilling and unable to stand up."
The president's defenders point to research by the Washington Post's Christopher Ingraham showing that President Obama has signed fewer executive orders per day in office than any president going back to Grover Cleveland. But that overlooks the myriad other ways a president can de facto "legislate" by wielding executive power: signing statements, directives to cabinet secretaries, executive memoranda, recess appointments, budgeting, reassignment of personnel, and many more.
Senior administrative sources have indicated they will pursue a wide range of post-midterm executive actions, with options ranging from immigration reform to U.N. environmental mandates to countering the overseas flight of U.S. companies seeking to avoid the singularly high U.S. corporate tax rate.
Just how far will Team Obama go after Nov. 4? Former White House Deputy Chief of Staff columnist Karl Rove recently wrote in the Wall Street Journal: "Will he spend two more years polarizing Washington, attacking Republicans' motives, complaining about GOP obstructionism, and circumventing Congress in lawless, even unconstitutional, ways?"
It is by no means clear what the president's political calculus will be as he seeks to shape a second-term legacy. In some ways, Obama finds himself snagged on the horns of a dilemma.
On the one hand, to cement his progressive legacy as a president who governed to the left of Bill Clinton, Obama must demonstrate he's willing to fight for the core issues of the Democratic activist base. Toward that end, the White House has released a document spotlighting the more than 40 executive actions that the president has undertaken in 2014.
The message: Obama continues to push the liberal agenda despite strong GOP opposition.
But pushing too far, too fast could be risky, and may energize resistance on both sides of the aisle. If the backlash is too strong, future presidential historians could well debate whether Obama's go-it-alone approach disregarded the constitutional prerogatives of the other branches of government. That, in turn, could ignite a debate over whether Obama's presidency exacerbated the very political divide that he promised to heal in 2008. The liberal law professor Jonathan Turley has sounded the alarm that President Obama could provoke a "constitutional crisis" if he continues to push the envelope of executive power.
In this regard, the president already has suffered a sharp rebuke: A rare, unanimous ruling by the U.S. Supreme Court against his issuance of pocket appointments to the National Labor Relations Board while the Senate technically was in session. The Supreme Court ruled that was unconstitutional.
Swift action on a series of post-midterm presidential directives could also spoil any hope on the Hill of working out deals that might otherwise be within reach: Eliminating the medical-device tax in the Affordable Care Act, for example, or finding a middle ground on immigration reform.
When think-tank maven and former Clinton chief of staff John Podesta joined the White House late last year, it was widely interpreted as a signal that Obama's second term would unapologetically rely on executive mandates rather than congressional deal-making.
Podesta, who engineered several executive actions during Clinton's presidency, co-authored a whitepaper in 2010 stating: "Concentrating on executive powers presents a real opportunity for the Obama administration to turn its focus away from a divided Congress and the unappetizing process of making legislative sausage."
That report went on to enumerate over 100 executive-branch actions that the White House could unilaterally implement. Several of the recommendations already have become federal policy.
Of course, no crystal ball can precisely predict what Team Obama will elect to do once the midterm smoke clears. But here are the major policies the administration has indicated it seeks to implement, whether Congress agrees or not.
Pardoning Drug Criminals
There is broad support on the left for reducing drug-related incarcerations. In December, President Obama commuted the sentences of eight crack cocaine convicts. In August, Attorney General Eric Holder ordered prosecutors to no longer specify in their indictments the amount of an illegal substance in their cases, thereby neutering federal mandatory-minimum sentencing mandates. Look for a sharp increase in the use of pardons and "prosecutorial discretion" in the months ahead.
Closing Down Gitmo
From the earliest days of his presidency, Obama promised to close Guantanamo Bay, a symbol to the Democratic base of everything wrong with the Bush administration's approach to fighting terror after 9/11. In recent weeks, senior administration officials have said the president remains "unwavering" in his commitment to shutter Gitmo before he leaves office, presumably by relocating its 149 remaining prisoners by releasing them abroad or moving them to U.S. territory.
But the political blowback, both in polls and on Capitol Hill, has made that infeasible. Congress has specifically banned such a move. With polls showing two-thirds of voters opposing such a move, closing Gitmo would be risky indeed, with American University law professor Stephen Vladeck telling the Wall Street Journal it would "ignite a political firestorm."
Appointing More Liberal Jurists
Curt Levey, head of the Committee for Justice group, warns that if the GOP fails to wrest control of the Senate from Democrats, the influx of liberal jurists seen since Senate Majority Leader Harry Reid imposed a modified form of the nuclear option will only accelerate.
"My biggest concern," Levey tells Newsmax, "is what Obama will do if Democrats maintain control of the Senate. Without the judicial filibuster and without the political constraints of an upcoming election, I would expect to see many far-left people nominated and confirmed to the federal bench."
Domestic Snooping
Given the ongoing controversy over the NSA snooping scandal, the president could issue an executive order shifting the responsibility to private firms. Directing that all "meta-data" from domestic telephone calls be warehoused by private corporations would enable government agencies to file specific requests for information they later decide they need. The goal would be to quell complaints that the current process violates Fourth Amendment protections against unreasonable search and seizure, and to re-cast the president as a defender of the Bill of Rights.
Killing Keystone XL
There's been rampant speculation the president will administer the coup de grace to finally kill the Keystone XL pipeline proposal. Doing so would earn him hosannas from his party's environmental wing. Polls show about two-thirds of Americans want the president to sign off on the pipeline that would transport oil from the tar sands of western Canada to America's Gulf Coast refineries. The State Department has estimated the project would add 2,000 construction jobs, and another 40,000 indirect jobs. But no one knows which side the president ultimately will support.
Heritage Foundation chief economist Stephen Moore recently remarked in a column for Newsmax Magazine: "Fortunately, our leaders had the wisdom and courage to give the green light to the Alaska Pipeline 40 years ago. We face the same economic and national security imperatives today. But with the new pipelines linking China and Russia, time is not on our side."
Environmental Activism
Podesta reportedly accepted his new job on one condition: That he be given unrivaled authority to call the shots in the environmental arena. Options for executive-branch action include: Signing onto international diplomatic accords that would stop just short of requiring Senate confirmation, in order to limit U.S. production of greenhouse gases; restrictions on methane emissions that occur during national-gas production; and stringent, expensive regulation of the coal ash generated by power plants.
So far, Congress has blocked the EPA from declaring coal ash a hazardous waste. But that could invite executive action if the president decides he has nothing to lose politically. Penalizing power companies for producing coal ash could further damage their viability.
So far, ironically, administration policies appear to be forcing the coal industry to sell its wares overseas, where inefficient coal-fired power plants only exacerbate global greenhouse emissions. From 2002 to 2012, U.S. coal exports soared from less than 50 million tons in 2002 to more than 117 million tons.
Immigration Reform
The administration is expected to expand on its tactic of granting de facto amnesty to broader swathes of the undocumented immigrant community. Political analyst Dick Morris, author of the new bestseller
"Power Grab: Obama's Dangerous Plan for a One-Party Nation," sees a nefarious aim behind the dilution of U.S. immigration laws. "[Obama] realizes that the best way to keep his party and ideology in power is to promote poverty, stoke class resentment, fuel ethnic warfare, and disrupt industrial harmony," Morris tells Newsmax. "He wants to change our politics by changing America's demographics, bringing in millions of foreigners to change the way the country votes and how it thinks."
One specific concern is that the president may unilaterally raise the number of visas or green cards for foreign high-tech workers. In October, Iowa GOP Sen. Chuck Grassley fired off a letter to the White House warning that such a move "would be an abuse of authority."
Monuments Galore
Every time a site is added to the nation's list of national monuments, it gains enhanced federal protection. In 2010, to the delight of the environmental crowd, a leaked Bureau of Land Management memo revealed the administration could grant landmark status to over a dozen sites. Areas previously targeted by Podesta have included: 2.5 million acres of northern prairie in Montana, and parts of the 4-million acre Owyhee Desert in Idaho, Nevada, and Oregon. In May, the administration designated half-a-million acres of New Mexico's Organ Mountains-Desert Peaks area as a national monument. That blocks mining activity and development, and local ranchers complain it will restrict access to lands where their cattle have grazed for decades.
Fees on Oil Imports?
Since 1988, presidents have had the power to slap an import fee on oil imports if energy imports are determined to diminish national security. If the administration hiked fees enough to raise gas prices by 2 cents a gallon, it would generate an estimated $9.5 billion for federal coffers. It could also open a new front in efforts to shift U.S. industry to greener energy sources. Podesta has urged the administration to study whether high levels of imports do impair national security. U.S. imports have been plummeting, however, as new shale-oil sources come online.
More Obamacare Changes
Federal bureaucrats monitoring the rocky Obamacare rollout are reassuring insurance companies that the "risk corridor" program, which essentially bails out insurance companies if healthcare reform costs them too much money, could be expanded. HHS officials recently stated, "We intend to explore ways to modify the risk corridor program final rules to provide additional assistance." Look for the rule-making associated with Obamacare to continue well into 2014, and probably beyond.
Of course, the president and his party can expect the resistance to executive rule-making to escalate sharply if Republicans capture both chambers of Congress in November.
If that happens, Americans for Tax Reform president Grover Norquist predicts, Republicans will use their bigger megaphone to shape the political landscape leading up to the 2016 elections.
"The goal will be to make marginal improvements," Norquist says, "and to force every single Democrat in the House and Senate to cast difficult votes that paint them in the left-wing corner."
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