Obama works around Congress on climate change, healthcare

By Jason Millman and Andrew Restuccia - 12/30/10 06:00 AM ET

Republicans are preparing an array of budgetary, legislative and political strategies to fight regulatory action by President Obama.

Without Speaker Nancy Pelosi (D-Calif.) and a majority in the House, Obama is expected to rely heavily on his executive power to influence policy over the next two years.

To counter that effort, Republicans hope to cut off funding for the new healthcare law and, through legislation, to block efforts by agencies to regulate greenhouse gas emissions and the Internet.

“We will not allow the administration to regulate what they have been unable to legislate,” Rep. Fred Upton (R-Mich.), the incoming chairman of the House Energy and Natural Resources Committee, said last week.

The White House’s regulatory work already has stirred outrage among Republicans and business groups, which argue the White House is trying to enact policies through regulatory action after failing to win support from Congress.

These include greenhouse gas standards, the Federal Communications Commission’s (FCC) net-neutrality rules and the inclusion of advanced care planning in a Medicare rule after a similar provision was scrapped from the administration’s healthcare overhaul when Republicans said the provision would create government-run "death panels." 

White House efforts to issue major regulations are “unprecedented,” said Reed Rubenstein, senior counsel for the environment, technology and regulatory affairs division of the U.S. Chamber of Commerce. The business lobby is devoting significant resources to oversight of the administration’s regulatory agenda, specifically regarding transparency and efficiency.

Rubenstein argues President Obama is “inclined to regulate” and that the Democratic-led Congress has passed broad legislation that allows the administration to issue regulations that fill in key details.

“You end up with sort of a perfect storm,” Rubenstein said. “It brings all of these process issues we’ve been dealing with for decades into focus.”

But Sarah Rosen Wartell, executive vice president of the left-leaning Center for American Progress, argues that President Obama’s efforts to exercise his regulatory authority are no different from those of other presidents.

“If you think of the president’s job as somebody who just negotiates policy with Congress, than you have a very limited understanding of the authorities granted to the executive in the Constitution,” she said.

“When the president uses those authorities that the office has been given to accomplish policy objectives, he’s doing something no different than any modern president,” said Wartell, who pointed to similar actions by both President George W. Bush and President Clinton.

Republicans will have ample opportunity to hamstring Obama's agencies in funding battles over the healthcare reform law, experts say. Congress must still appropriate more than $105 billion in reform law funding, setting the stage for Republicans to limit regulatory power.

At the same time, Republicans and some Democrats hope to block the Environmental Protection Agency’s ability to regulate greenhouse gas emissions next year. A bill authored by Sen. Jay Rockefeller (D-W.Va.) that would delay the agency’s greenhouse gas authority by two years failed to gain enough support to come up for a vote this year. But Republicans aim to revive a similar proposal next year that would delay the agency’s authority indefinitely, or until a key court case on the issue is resolved.

Republicans have also said they intend to target the FCC’s net-neutrality rules, which ban cable and telephone companies from restricting access to their competitors. Republicans have decried the recent move by the FCC as “regulating the Internet.”

Upton will play a major role in rolling back the administration’s regulations, as his committee has jurisdiction over all three of these issues. House Republicans face an uphill battle, however, since Democrats remain in control of the Senate.

A number of interest groups are planning to aid Republicans’ efforts to target the administration’s regulations.

An influential Tea Party group announced this week it would launch a grassroots campaign to pressure Congress into rejecting “outrageous” regulations by making use of the Congressional Review Act (CRA). The CRA has been used to void a regulation just once since its 1996 enactment, and Obama would have the opportunity to easily veto any CRA measures without holding up other important legislation. However, supporters of the strategy say the law is effective because it forces members to take high-profile up-or-down votes.

“It’s critical that we create political pressure and awareness that forces Congress to take responsibility for excessive executive power,” said Phil Kerpen, vice president for policy at Americans for Prosperity.

The Chamber is expected to continue to argue regulations being imposed by the administration are hampering the economic recovery — an argument with weight, given the 9.8 percent unemployment rate.

In an October speech in Iowa, Chamber of Commerce President Tom Donohue pointed to what he called a “tsunami of government regulations” that presents a “clear and present threat” to job growth and the U.S. economy.

“[I]f we don’t act now,” Donohue said, “we run the risk of moving this country away from a government of the people to a government of the regulators.”

While any president wields tremendous executive power, efforts to enact policy through regulations do come with some drawbacks, said Steven S. Smith, a congressional expert at Washington University in St. Louis. For starters, it won’t amount to many positive front-page headlines heading into the 2012 presidential campaign.

“If you want to build a reputation as an effective president, the regulatory process is not a particularly attractive way to go,” Smith said.

Further, effecting policy through law is preferable because it has much more staying power than regulation.

“Regulation is written in sand,” said Kenneth P. Green, interim director of the conservative American Enterprise Institute’s Center for Regulatory Studies. “The next Republican who gets in can undo a large number of these regulatory actions and overturn them with the exact same authority as he's implementing them.”