Constitutional Law

Is administration's vow to bypass Congress an unconstitutional end run or 'overblown rhetoric'?


Advance press coverage indicated President Obama would boldly declare his intent to bypass Congress during his State of the Union address on Tuesday.

But the specifics of the president’s proposals weren’t as expansive as the hype. According to Reuters, the president “offered modest or vague ideas that hardly stretched what Americans think of as a president’s power, and that were unlikely to send business organizations rushing to file many lawsuits in courthouses.”

The Volokh Conspiracy suspected the advance talk was inflated. In a blog post written before the speech, Northwestern University law professor Eugene Kontorovich said he doubted many of the president’s proposals would be constitutionally problematic and said the promise to bypass Congress may amount to “overblown rhetoric.”

“Here’s a rough test,” Kontorovich wrote. “The president can exercise some legislative powers when i) Congress has delegated such power to the president by statute—most executive orders implement statutorily given discretion, OR, ii) the president is exercising one of his office’s inherent constitutional powers.”

According to the Reuters coverage, Obama’s vow to raise the minimum wage to $10.10 an hour in future federal contracts is based on the Procurement Act of 1949, which gives presidents the authority to set contracting rules that “promote efficiency and economy.” The law was at issue in a 2009 case when a federal judge said President George W. Bush had the authority to require government contractors to check the immigration status of their workers.

Obama also promised to act to reduce carbon pollution from power plants, “but litigation in that area would be nothing new,” and he proposed higher fuel-efficiency standards for trucks that are mostly supported by automakers, Reuters says.

The president also unveiled a plan for a new starter saving account set up by the Treasury Department, but it was short on legal specifics, Reuters says. Bloomberg spoke with administration officials about the plan for new “MyRA” accounts.

Workers without 401(k) accounts could have a portion of their pay deducted for investments in U.S. government bonds. After the accounts reach a maximum balance, the money would be rolled over into an Individual Retirement Account. The money would be treated as an IRA for tax purposes even before the rollover.

Watch the speech on YouTube

Read the transcript

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