Clinton May Rely on Executive Actions More Than Obama If She Wins

Facing potential gridlock, Clinton is campaigning on promises to take far-reaching and legally contentious unilateral moves.

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Democratic presidential nominee Hillary Clinton speaks on Aug. 25, 2016, in Reno, Nevada.

Photographer: Justin Sullivan/Getty Images

Hillary Clinton may have to rely on executive actions to an unprecedented degree to secure major policy accomplishments if she's elected president, and the Democratic Party's left wing intends to hold her feet to the fire to make sure she does just that.

In anticipation of becoming the first Democratic president in over a century to take office without full control of Congress, Clinton is campaigning on promises to take far-reaching and legally contentious unilateral actions that go beyond the steps taken by President Barack Obama. They include giving work permits to 5 million undocumented immigrants, requiring background checks for purchases of firearms online or at gun shows, imposing long-term limits on climate-warming emissions, and closing a tax loophole that benefits hedge fund managers.

“She needs to demonstrate to the base that one way other another, she's actually going to get something done,” said Jim Manley, a former adviser to Senate Democratic leader Harry Reid. “They feel—wrongly, in my opinion—that this president hasn't done enough. So she's not going to fall for that trap.”

It’s “unusual” for presidential candidates to tout executive actions, said Norm Ornstein, a political scholar at the American Enterprise Institute, because they typically assume disputes will be resolved through the legislative process. “This is making it clear that she understands the legislative process is pretty much broken,” he said.

Ornstein said there are some issues she may be able to move bipartisan legislation on in her first few months, such as an infrastructure package, changes to the tax code, or a fix to ailing Affordable Care Act exchanges.

"Other than that, she's going to be doing just what Obama did, which is getting as much done as possible with executive power," Ornstein said.

After he secured major legislative achievements with Democratic majorities in his first two years, Obama resorted to executive actions during his second term. Accusing him of running an "imperial presidency," Republicans pushed back on Obama using legislation and lawsuits, and they intend to keep up the heat if a President Hillary Clinton follows in his footsteps.

"A big part of the House's ‘Better Way’ agenda is restoring Congress’ powers and asserting checks on executive power, and we’ll pursue those reforms regardless of who is in the White House," AshLee Strong, a spokeswoman for House Speaker Paul Ryan of Wisconsin, said in an e-mail.

Clinton's persistent and significant lead in the polls has congressional Republicans resigned to having her in the White House, with many actively discussing how to deal with her presidency, according to senior House aides.

Michael Steel, a former spokesman for ex-House Speaker John Boehner and a top adviser to Jeb Bush's 2016 campaign, said he hopes Clinton's time in the Senate will make her a president who is "more respectful of the limited role of executive power under our Constitution, and follow her husband's example finding common ground on issues like balancing the budget and welfare reform in the 1990s."

"If she does not, I expect the pushback from congressional Republicans will be swift, fierce, and unrelenting," Steel said.

Republican House Hammerlock

Even if Democrats win the White House and Senate, polls indicate Republicans are likely to maintain control of the House. The probability of that scenario has prompted progressive groups, who showed their clout in the Democratic primary, to ratchet up the pressure on Clinton.

"With an intransigent Republican Congress still more likely than not, we hope Secretary Clinton will use all the tools at her disposal as president, including executive action, to pursue the progressive platform she's running on," said Dan Cantor, the national director of Working Families Party. "One example is the carried interest loophole, which gives an insane tax cut for the super-rich that they do not need."

Clinton has vowed to protect Obama’s executive actions—including those on immigration, climate change, gun control, and LGBT rights—and go further. She’d expand deportation relief and work permits to the parents of young undocumented immigrants. She's vowed to fulfill commitments made in the Paris climate accord to cut U.S. greenhouse-gas emission as much as 30 percent in 2025 (compared to 2005 levels) "without relying on climate deniers in Congress to pass new legislation."

Clinton has also proposed a series of actions to crack down on Wall Street, an issue that animated supporters of her primary challenger, Vermont Senator Bernie Sanders. She’d tighten the so-called Volcker Rule to prevent large banks from putting taxpayers on the hook for risky trading. People on Wall Street who commit crimes "will be prosecuted and imprisoned," her blueprint says.

Clinton's proposed executive actions on Wall Street could be "extremely consequential" when it comes to preventing another financial crisis, said former Obama White House economist Jared Bernstein.

Some of Obama's executive actions have been successfully challenged in court; his 2014 move to shield about 4 million undocumented immigrants from deportation was blocked a federal court, and a deadlocked 4-4 ruling by a shorthanded Supreme Court left the program in limbo.

Clinton also would face certain legal challenges, but the vacancy left on the court by the death of Supreme Court Justice Antonin Scalia looms large. A Clinton appointee would lead to a majority of Democratic-nominated justices for the first time in generations, a shift that some legal scholars believe might lead to rulings that expand the limits of executive power. 

A Clinton campaign spokesman didn't return requests for comment.

No Honeymoon?

If the Republican majority shrinks in the House, it likely will come at the expense of more moderate members in swing districts, giving even more power to the party's most conservative wing. That may be a recipe for continued legislative paralysis.

“You're going to have a party struggling to regain its mojo. How do you do that? You look to how you can score a big victory in the next election,” Ornstein said. “Well, they have a playbook for that. Delegitimze the president and the process; capitalize on the angry populist reaction.”

And in the most optimistic scenario, in which Democrats win a narrow House majority, many new members will be from Republican-leaning districts, thus creating an incentive to distance themselves from Clinton. “You’d have a lot of members who are going to be running scared,” Ornstein said.

Despite Clinton’s strong relationships with numerous Republicans in Congress from her two terms in the Senate, structural incentives will make cooperation difficult. Obama received scant GOP cooperation despite taking office with clear majority of votes and a towering approval rating of 68 percent, according to Gallup. Clinton's latest favorable rating is 40 percent. Her intense unpopularity among GOP voters, combined with conservatives’ preference that leaders stand on principle rather than compromise, means Ryan could pay a price in the House Republican caucus for cutting deals.

"I don't think that a President Clinton and her team should expect much in the way of a honeymoon next year if she were to win," said Manley, the former Reid adviser. "Hope springs eternal, but I'm not convinced that, especially in the House, Republicans are going to tell the Freedom Caucus they've had enough with their tactics. Throw in trustworthy ratings [for Clinton] and it's going to be very problematic."

"This debate hasn't begun yet, but it's going to be ugly," he said.

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