The Times explores one of the key downsides of the President creating law through executive action–all of the deliberations are done behind closed doors.
When President Obama announced in June that he planned to bypass congressional gridlock and overhaul the nation’s immigration system on his own, he did so in a most public way: a speech in the White House Rose Garden.
Since then, the process of drafting what will likely be the only significant immigration changes of his presidency — and his most consequential use of executive power — has been conducted almost entirely behind closed doors, where lobbyists and interest groups invited to the White House are making their case out of public view.
Mr. Obama’s increasingly expansive appetite for the use of unilateral action on issues including immigration, tax policy and gay rights has emboldened activists and businesses to flock to the administration with their policy wish lists. It also has opened the president, already facing charges of executive overreach, to criticism that he is presiding over opaque policy-making, with the potential to reward political backers at the expense of other interests, including some on the losing side who are threatening to sue.
The Times–not me–makes this point clearly: executive action eliminates congressional deliberation:
The go-it-alone approach has left the administration — which claims to be the most transparent in United States history — essentially making policy from the White House, replacing congressional hearings and floor debates with closed meetings for invited constituencies.
“The executive branch is not really set up to be a deliberative body like the Congress is,” said Andrew Rudalevige, a government professor at Bowdoin College who has studied the consequences of executive action. “The process is certainly stacked toward the policy preferences of the administration, and they’re going to listen to the people they think are right, which usually means the ones who agree with them.
“Those who are ‘in’ will engage the White House and the agencies to get their priorities met, and if you’re ‘out,’ you turn to the legal process” to challenge the executive action after it is taken, he said.
At least with Congress, most meetings and deliberations are done in public. Not so when the President sees fit to enact the policies he wishes, where secret shareholders have the President’s undivided attention.
White House officials say Mr. Obama has been inclusive as he looks to wield his authority, reaching out to an array of lawmakers, experts and business leaders for a wide range of perspectives to inform his plans for executive actions. Since the president first announced his intention to use his “pen and phone” to advance his agenda during his State of the Union address in January, White House officials have held weekly meetings to compile ideas from inside and outside the administration.
In some cases, the public has gotten a glimpse of the process, such as during a summit meeting on working families in June. More often, though, the talks have occurred behind the scenes. Administration officials have convened more than 20 so-called listening sessions this summer alone on executive options for revising immigration policy, a White House official said, declining to discuss the sessions in detail because the conversations were private.
In one sense, because people have zero input to the laws beforehand, litigation becomes a much more attractive option, as this is the only mechanism to be involved in process. One group, which would usually be able to lobby Congress, is without that option, so may turn to the courts.
“We look at what they’ve been doing with executive action and are deeply concerned, and have focused a lot of our energies on how we can roll back these things,” said Geoff Burr, the vice president of federal affairs for Associated Builders and Contractors, whose member companies do 60 percent of federal construction jobs.
Mr. Burr said an executive order issued by Mr. Obama last month that would block companies with a history of workplace violations from receiving federal contracts had prompted his group to contemplate “the virtues of a litigation strategy.”
The article also explains how a union group “sought out” a law professor to advise them about the President’s executive powers to deal with corporate expatriation. The same Professor also wrote an article explaining the President has that power to deal with the problem unilaterally. The Times leaves the reader to connect the dots. It’s unclear if he was paid.
One group, Change to Win, a labor union-backed consumer advocacy organization that has pressed for congressional action to block corporate inversions, sought out a legal expert with Obama administration ties, Stephen E. Shay, to press its case.
Professor Shay, a top Treasury official during Obama’s first term who now teaches at Harvard Law School, was asked by the group to craft a legal justification for the administration to act without congressional approval. Professor Shay wrote an article in the trade journal Tax Notes in July, asserting that the president’s team had broad authority to do so.
“We asked his advice as to how to bring this forward to the administration,” said Nell Geiser, the associate director of retail initiatives at Change to Win, who said Professor Shay’s connections at the Treasury were vital. “He knew all the personalities and their dynamics.”
The article in question by Professor Shay, Mr. Secretary, Take the Tax Juice Out of Corporate Expatriations, 144 Tax Notes 473 (July 28, 2014), does not mention that “Change to Win” sought him out. The closest it gets is this author note:
Stephen E. Shay is a professor of practice at Har- vard Law School. Shay thanks Nell Geiser and Molly Thomas-Jensen from Change to Win for drawing his attention to the Wal- greens transaction and Cliff Fleming, Nell Geiser, Steven Rosenthal, Molly Thomas- Jensen, and others who prefer not to be identified for discussions about market activity and helpful comments on earlier drafts.