Obama's Pen: The Most Powerful Branch of Government?

Earlier this week on PJM, Hans A. von Spakovsky revealed that President Barack Obama is prepared to use the power of the presidential pen to impose portions of the DISCLOSE Act — the Democratic attempt, spearheaded by Sen. Chuck Schumer and Rep. Chris Van Hollen, to overturn the decision of the United States Supreme Court in Citizens United v. FEC:


The bill had onerous requirements that were duplicative of existing law and burdensome to political speech. It never passed Congress because of principled opposition to its unfair, one-side requirements that benefited labor unions at the expense of corporations. Democratic commissioners at the Federal Election Commission then tried to implement portions of the bill in new regulations. Fortunately, those regulations were not adopted because of the united opposition of the Republican commissioners.

According to a release by House Committee on Oversight and Government Reform Chairman Rep. Darrell Issa (R-CA), the draft executive order would require companies doing business with the federal government to disclose contributions to some issue advocacy groups while exempting labor unions and special interest groups that support the president’s agenda:

This order is a purely political act offered under the benign label of disclosure. … The order would not impose the same requirements on the labor unions or other organizations who support the president. Furthermore, it unnecessarily politicizes the procurement process.

The administration is again attempting to achieve through regulation what they could not accomplish through legislation. This sleight of hand cannot continue as the president makes promises to work together while issuing highly political edicts that simultaneously circumvent the will of Congress and the Courts. Transparency and disclosure are serious issues that are essential to restoring Americans’ faith in their government. The president, here, is using them as a political hammer to strike at his opponents. They deserve more thoughtful consideration.


This is not the first time the president has tried such a move. The Huffington Post reported (if only to cheer him on):

Faced with a Congress hostile to even slight restrictions of Second Amendment rights, the Obama administration is exploring potential changes to gun laws that can be secured strictly through executive action, administration officials say.

As far back as February of last year, the New York Times took note as well:

With much of his legislative agenda stalled in Congress, President Obama and his team are preparing an array of actions using his executive power to advance energy, environmental, fiscal and other domestic policy priorities.

This March, the administration ignored a major federal court ruling:

U.S. District Judge Roger Vinson […] chastised the government for not interpreting [his ruling against Obamacare] as an immediate injunction to stop implementing the new law.

Vinson criticized the Justice Department for not following normal procedure and requesting a stay.

“It was not expected that they would effectively ignore the order and declaratory judgment for two and one-half weeks, continue to implement the Act, and only then file a belated motion to ‘clarify,’” Vinson wrote.


The administration is fond of claiming it serves the interests of governmental openness, but it’s painfully clear that the latest executive order has nothing at all to do with transparency. (Witness my Kafkaesque adventures in FOIAland with Richard Pollock this month.) So much for the most transparent administration in history.


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