Analysis: Enforcer in Chief Must Reach Far Beyond the Power of the Pen

Carolyn Kaster/AP file photo

President Obama has discovered the limits of his phone and pen, and he unconsciously revealed them during his State of the Union address.

Obama had earlier used the phone to lobby top corporate CEOs to pledge not to discriminate against the long-term unemployed. This he did as part of what he calls the "convening" powers of the presidency—the ability to have your calls answered by anyone and persuade them to take collective action. That's on the puny scale of presidential powers but, for reasons known only to Obama, holds special allure just now. Obama will build on Tuesday's rhetoric with a Friday event highlighting corporate commitments.

Can the president have forgotten he already used more-traditional presidential powers—signing legislation—to address this issue? He signed a 2011 bill providing tax breaks to companies that hired unemployed and disabled veterans and 2010 legislation that cut payroll taxes for companies that hired the unemployed. Obama has thus shelved real power, that which lies in legislating, and opted for a theatrical gesture of an unenforceable pledge from corporate America. When I asked White House senior adviser Dan Pfeiffer about using words instead of legislation to help the long-term unemployed, he said public pledges resonate.

"When companies come to the White House and say to the entire world that they're going to do this, that is a very real commitment," Pfeiffer said.

And about settling for pledges instead of new legislation?

"This builds on that, because we have helped some people; we need to help more by getting some of the largest corporations in this country, many members of the Fortune 100, committing to adopt a new set of policies that will ensure that more workers get hired. It's real progress."

Provided the pledge conforms with the underlying economics of profit, wages, productivity, investment, and business expansion. administration officials don't deny that pledges alone can't overcome any of these fickle little realities. If the economics allow, workers will be hired. That was true Monday. It will be true today. Pledge or no pledge, and convening authority notwithstanding.

As for the pen, it, too, has limits, as was painfully evident when the White House sought headlines for an executive order Obama intends to sign requiring a $10.10 wage for federal contract workers. After releasing the news, officials admitted Obama hadn't yet signed the order and could offer no clue when he would, admitting that the pen stroke could be weeks or even months away. Talk about decisive.

The specifics revealed that the order would apply only to future federal contracts. That means no pay raise for workers under existing contracts, cold comfort to those who have recently gone on strike at the Pentagon and the Smithsonian to protest low wages. The White House could offer no immediate estimates of how many workers would benefit from the soon-to-be-signed executive order.

The announcement elicited grudging praise from progressives who lobbied the White House to raise the wages of current federal contract workers. Jim Dean, chairman of Democracy for America, offered the clichéd and wilted praise of disappointment, calling the executive order "a step in the right direction."


"It offers little comfort to the more than 2 million janitors, food-service workers, and others who are laboring in government buildings for minimum wage today," Dean said. "This action, while a step forward, suggests he may still be unwilling to take the fighting stance necessary to deliver the big wins over growing inequality that our country desperately needs."

Pfeiffer told me Obama's doing all he can—meaning confronting the limits of the pen.

"These are contracts," Pfeiffer told me. "You can't rewrite them. We're not going to rip them up, so we are doing as much as we can to help as many workers as possible. We're talking hundreds of thousands of workers over the course of time."

I asked Pfeiffer how much time. His answer: "Distant."

The phone and the pen a president can wield. But neither move the nation nor leave a lasting impression. Legislation does. And that requires persuasion, cooperation, perseverance, and compromise, among other things.

Immigration will be the test for Obama for the remainder of this year. The phone and pen will be useful only to negotiate with lawmakers and to rewrite underlying legislation.

But first the House has to write it. That makes this moment crucial for House Republicans as well as Obama. The table is set for action. House Speaker John Boehner, R-Ohio, has committed to a set of immigration-reform principles. He will present them to House Republicans at their retreat later this week. This may sound like simple process and low-wattage maneuvering. It is not.

Boehner knew that talk radio and entrenched conservative opponents would mobilize at the first sign of leadership movement toward immigration legislation. As part of this, the GOP leadership staff hovered closely over the immigration language in Rep. Cathy McMorris Rodgers's GOP response. In the main, Boehner is daring hard-liners in his conference to take a run at him and other pro-reform House GOP leaders during the retreat, betting that debate and nose-counting will give him an edge. Not an immediate one, but a sense of the current playing field and the difficulty of the bill-writing task ahead.

If Boehner continues to move the immigration train along the tracks—and nothing in the past two months suggests he won't—Obama will have to give House Republicans that which the legislative process most needs. And that, put simply, is a promise to enforce the law as written, something Rep. Paul Ryan, R-Wis., who, this column noted last month, would become a leader on the issue, has identified as central to the coming legislative tangle. It is a hoary concept, enforcing the law as written. It glows with the dusky patina borne of age, resilience, and being treasured. It is also, constitutionally speaking, the simplest and most direct and lasting presidential power of all. Biographies are written about it. Truly.

The stumbling block that could inhibit House Republicans from summoning the political will and legislative nerve to surmount tea-party-inspired protests is a sense that Obama will not enforce new border and interior security requirements. Republicans fear White House shortcuts in Obama's haste to accelerate a path to full-citizenship status for the estimated 11 million undocumented immigrants in the U.S. But this fear is not paralyzing. There is already an elaborate semantic exercise going on behind the scenes to determine the linguistic elasticity between legal status and citizenship. Hence the premium on trustworthiness where enforcement—once the language is agreed upon—is concerned.

Obama's history with the Affordable Care Act suggests a certain expedient flexibility that aggravates Republicans almost as much as the law itself. To achieve immigration reform, Obama will have to use his phone to call lawmakers and his pen to settle on the final wording of the law. And if that legislation is passed and Obama affixes his signature, the power to enforce the law will be preeminent.

So, the key to Obama's year has nothing to do with his flamboyant use of the phone and pen. It rides instead on the less gaudy and haughty constitutional powers every previous president has understood. And wielded to lasting effect.

The author is National Journal Correspondent-at-Large and Chief White House Correspondent for CBS News. He is also a distinguished fellow at the George Washington University School of Media and Public Affairs.

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