Last week President Obama used a strategy that should become an important part of his leadership going forward. On February 18, he issued an executive order creating a bipartisan commission on addressing the budget deficit, after the Senate failed to enact legislation that would have done so. Whatever one thinks of the commission’s mission or likely recommendations, the order should represent a rediscovery of the power of the presidency.
Perhaps because he came to the White House directly from the Senate, the President has been overly reliant on that body to achieve his goals. It goes without saying that the Senate is dysfunctional and divided—by contrast, the House has passed superior versions of many of the President’s legislative priorities, only to see more anemic version die at the other end of the building. But while the Senate is crucial to federal legislation, and federal legislation is crucial to transformative change on many issues, such as health care, financial regulation, and immigration reform, presidents wield tremendous power as presidents through their constitutional authority as executive. The executive order is a prime example.
President Obama has issued some 42 Executive Orders since he took office. But the Deficit Commission order served as a public notice—or at least it should—that the President stands ready to move solutions forward, within constitutional limits, when the Legislative Branch fails to act.
Proactive use of the executive order has been an important tool for past presidents and, in particular, those pushing forward progressive policies in the face of conservative filibuster threats. In 1941, for example, President Roosevelt signed Executive Order 8802 to prohibit racial discrimination in the national defense industry. It was the first federal action, though not a law, to prohibit racial discrimination in employment in the United States. In 1948 President Truman signed Executive Order 9980, ordering the desegregation of the federal work force, and Executive Order 9981, ordering the desegregation of the armed services. And in 1961, President Kennedy issued Executive Order 10925, which created the Committee on Equal Employment Opportunity and required that projects financed with federal funds "take affirmative action" to ensure that hiring and employment practices are free of racial bias.
Throughout this period, civil rights legislation was proposed, debated, and killed by filibustering segregationist Southern Democratic senators. Even when legislation initially passed, in the 1950s, it was largely toothless. By contrast, the civil rights executive orders had huge impact, both practical and symbolic, and showed the nation what was possible. Similarly, in 1998 President Clinton signed a groundbreaking executive order, 13087, prohibiting discrimination in federal Executive Branch employment based on sexual orientation.
Starting now, President Obama should wield the executive order more publicly, as many of his predecessors did, to solve problems and protect basic rights. While Congress dithers over ending the shameful Don’t Ask, Don’t Tell policy, the president should immediately outlaw discrimination and harassment based on sexual orientation or sexual identity in federally funded programs and in federally assisted housing. As a much needed jobs bill is stripped down and delayed in the Senate, the president should issue an order requiring that federal agencies administer all federal appropriations so as to maximize job creation for all Americans and equal opportunity based on race, ethnicity, gender, sexual orientation, and disability. And as the fifth anniversary of the Hurricane Katrina tragedy approaches, the President should issue an executive order providing that federal responses to national disasters and emergencies must meet established international human rights standards, known as the United Nations Guiding Principles on Internal Displacement.
This is just a start, and must be accompanied by a cogent explanation to the American people about why these and other Executive actions are necessary and in the country’s best interest. Over time, however, they will achieve important change, put pressure for action on both parties, and demonstrate what leadership really looks like.
