How Obama began to embrace executive power
Blocked by Congress, president is leaving vast regulatory legacy.
In nearly eight years in office, WASHINGTON — President Barack Obama has sought to reshape the nation with a sweeping assertion of executive authority and a canon of regulations that has inserted the U.S. government more deeply into American life.
Once a presidential candidate with deep misgivings about executive power, Obama will leave the White House as one of the most prolific authors of major regulations in presidential history.
Blocked for most of his presidency by Congress, Obama has sought to act however he could.
In the process, he created the kind of government neither he nor the Republicans wanted — one that depended on bureaucratic bulldozing rather than legislative transparency. But once Obama got the taste for it, he pursued his executive power without apology, and in ways that will shape the presidency for decades to come.
The Obama administration in its first seven years finalized 560 major regulations — those classified by the Congressional Budget Office as having particularly significant economic or social impacts. That was nearly 50 percent more than the George W. Bush administration during the comparable period, according to data kept by the regulatory studies center at George Washington University.
The administration’s regulatory legacy has become an issue in the campaign to replace Obama, as Donald Trump has sharply criticized regulatory overreach and promised to undo many of the new rules. But executive power has expanded steadily under both Republican and Democratic presidents in recent decades, and both Trump and Hillary Clinton have promised to act in the service of their own goals.
The new rules built on the legislative victories Obama won during his first two years in office. Those laws — the Affordable Care Act, the Dodd-Frank Act and the $800 billion economic stimulus package — transformed the nation’s health care system, curbed the ambitions of the big banks and injected financial support into a creaky economy. But as Republicans increased their control of Capitol Hill, Obama’s deep frustration with congressional opposition led to a new approach: He gradually embraced a president’s power to act unilaterally.
Kate Hanni, an advocate from Napa, Calif., for the rights of airline passengers, had tried for years to persuade the government to address a series of incidents in which flight delays left passengers trapped for hours on planes that had already left the gate, often in cabins with stinking toilets, weak air-conditioning and no food. The Bush administration put Hanni on a task force consisting mostly of airline executives, which concluded in the fall of 2008 — over her forceful and repeated objections — that the public was best served by allowing the airlines to make their own decisions.
Weeks after the task force released its report, Hanni was invited to Washington in December 2008 to meet with Robert S. Rivkin, the head of Obama’s transportation transition team. Democrats in Congress had introduced legislation to address the issue, but Rivkin asked Hanni if she would support new regulations instead. She would back anything enforceable, Hanni said. “Right answer,” he replied. Over the course of the next nine months, Rivkin and his team of career regulators at the Department of Transportation developed rules prohibiting planes loaded with passengers from sitting on the tarmac for more than three hours.
In May 2009, Rahm Emanuel, Obama’s first chief of staff, raised concerns about Janice Langbehn, a social worker who was barred from visiting her hospitalized same-sex partner.
Passing legislation to address the problem was unlikely, Emanuel knew, given entrenched ideological opposition and the White House’s focus on overhauling the health insurance system. But Nancy-Ann DeParle, director of the newly created Office of Health Reform, suggested an alternative: The administration had the power to impose conditions on hospitals that got federal Medicare funding.
A year later, the president directed the Department of Health and Human Services to develop regulations requiring hospitals to extend visitation rights to same-sex partners. A focus on similar issues produced more than 100 executive actions and regulatory changes intended to improve the lives of lesbian, gay, bisexual and transgender people.
A White House push to pass a sweeping climate change bill in 2009 failed in Congress, but almost from the outset, some of Obama’s aides were working on a Plan B. Cass Sunstein, Obama’s choice to lead the White House office that oversees rule-making, and Michael Greenstone, the first head of Obama’s Council of Economic Advisers, created an internal task force to put a dollar figure on the cost of carbon emissions.
The government does not try to quantify all the benefits of proposed regulations. When it came to environmental regulations, analysts often assigned a dollar figure to just one kind of damage — emissions of “small particles” — and then stacked up the costs of the proposal against the benefits of fewer particles.
Quantifying a second kind of damage, from carbon emissions, would broaden the assessed benefits of new regulations — potentially justifying new and stronger restrictions. In 2010, the administration issued a report that estimated the economic impact of global warming, including agricultural disruptions, increased flooding and health problems. It pegged the cost of carbon emissions at $21 per ton. An updated assessment in 2013 raised the price tag to $33.
When the administration announced stricter standards for automobile fuel efficiency in 2011, it cited the reduction in carbon emissions as a key benefit. Those benefits have since been cited in several dozen new regulations, including the hotly debated 2015 rule seeking to restrict emissions from new power plants.
The pace of regulation stalled somewhat in 2012, amid political concerns about announcing sweeping new regulations during the re-election campaign. In 2013, Obama’s team briefly hoped his victory would lead to legislative progress, but Republicans blocked gun control measures and an immigration overhaul, and partisan gridlock shut down the government for 15 days that October.
In January 2014, a frustrated president stood before Congress and declared “a year of action” — with or without the help of the Republicans arrayed before him.
“Whenever I can take steps without legislation to expand opportunity for more American families, that’s what I’m going to do,” Obama said in his State of the Union address.
Obama announced an executive order raising the minimum wage to $10.10 an hour for several hundred thousand cooks, janitors and other federal contract workers. In subsequent orders, each resulting in a new regulation, the president required contractors to let their workers take paid sick days and banned discrimination against lesbian, gay, bisexual and transgender workers. He also increased workplace protections for all workers at businesses that held federal contracts — an umbrella covering roughly 29 million workers.
“What the president was ultimately doing was holding up the United States government as a model employer,” said Joseph Geevarghese, director of Good Jobs Nation, a union-backed advocacy group that pressed the administration to embrace its regulatory power. “And it created a ripple effect. Within months of the president acting, you had private CEOs — Ikea, Gap, Disney, airlines — saying they, too, were going to boost minimum pay.”
With the president’s blessing, the EPA also became more aggressive. The agency asserted federal authority to protect thousands of waterways and wetlands, proposed to cap carbon emissions at new and existing power plants, raised emissions standards for trucks and airplanes, and called for new limits on methane, mercury and ozone.
“He has been much more ambitious and aggressive on environmental regulation than any other president we’ve had,” said Jeffrey Holmstead, a lawyer pursuing legal challenges to some of Obama’s signature environmental rules.