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Regulatory: President Obama shifts to unilateral executive action

The president uses his executive authority to influence government programs.

Frustrated with his inability to obtain legislation from Congress, President Obama recently shifted the focus of policymaking to emphasize steps he could take unilaterally under Article II of the Constitution as head of the executive branch. This initiative follows the model created by President Clinton in 1995 to 1996, when he faced a similar stalemate with the newly elected House Republican majority. Though mocked as playing “small ball,” the Clinton initiatives cleverly targeted smaller constituency groups whose support the president needed – and ultimately received – to gain re-election.

President Obama started this campaign on October 24, announcing that the Federal Housing Finance Agency would permit homeowners to refinance their mortgage even if the mortgage was 25 percent higher than the current reduced value of the property.

On October 31, the president sought to address pharmaceutical shortages and prevent possible price gouging. The head of the Food and Drug Administration must use his authorities to require manufacturers to provide advance notice of process problems that could create drug shortages.

In reality, the president possesses little ability to order changes in government programs based on his own, unilateral authority. In the non-defense sphere, Congress rarely delegates statutory powers to the president (the Superfund statute is an exception). Rather, because Congress has substantial persuasive influence over agency heads, it prefers to grant authority to them. The president cannot issue a legally binding order requiring agency heads to make changes, but can only issue a directive that is politically-enforceable (i.e., termination) instructing them to use their discretion in carrying out his policies to the extent possible.

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John Cooney

John F. Cooney is a partner in the Washington, D.C., office of Venable.

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