Legal Commentary

Frustregulation

By John Elwood

The 112th Congress will convene on January 5, 2011.   During his first two years in office, President Obama was at times frustrated by the slow pace of legislation he favored in Congress, but he ultimately had the necessary Democratic votes if he could muster them.  He now faces a solidly Republican House of Representatives, and no legislation will pass without truly bipartisan support. 

For a President who aspires to be a transformational leader in the mold of Ronald Reagan, it is surely a frustrating situation.  How can he continue to advance an ambitious policy agenda in the face of congressional opposition?

Obama is the third President in a row whose party lost control of Congress.  The prior two administrations thus provide a roadmap for a possible way forward.  As former presidential adviser Dick Morris recalled, ?[a]fter he lost Congress in 1992, Bill Clinton . . . resorted to executive orders to maintain his momentum as president.  With Congress unwilling to pass anything he proposed, the president canvassed the administration for ideas that could be implemented by executive orders.?  President George W. Bush followed a similar course, although his administration also considered advancing his agenda by using regulations promulgated by executive agencies.  Call it ?frustregulation??when Congress is no longer in friendly hands, Presidents turn to those levers of power still available to them. 

President Obama?s staff undoubtedly began compiling ideas for similar efforts immediately after November 2, if not before.  Indeed, as Charles Krauthammer has noted, the Administration has already made use of regulations to implement initiatives that failed in the Democratic Congress.  The Department of Health and Human Services recently issued a final rule providing Medicare coverage for ?voluntary advance care planning? during routine physicals, which is explicitly ?based on the definition of ?end-of-life planning?? (see p. 73406, column 3, of this final rule) and owes much to a provision of the President?s health care reform bill omitted from the final package after it touched off a political firestorm over ?death panels.? And although the President?s favored environmental legislation failed, as Jonathan Adler noted, in late December, the Administration announced plans to set greenhouse gas emission limits on refineries and fossil-fuel power plants. So we may expect to see more in this vein as the legislative picture worstens for the Administration.

As a fairly recent alumnus of the Executive Branch, my purpose here is simply to note the phenomenon as we count down to the opening gavel of the 112th Congress, not to condemn it.  But this is becoming a regular feature of modern political life as the houses of Congress continue to change hands.

Full post as published by The Volokh Conspiracy on January 04, 2011 (boomark / email).