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Obama and Executive Overreach

The issue of executive overreach from President Obama was debated on “Fox News Sunday,” but on two issues, the rhetoric outpaced the facts.

  • Republican Rep. Bob Goodlatte claimed that the Supreme Court’s “9-0 decision last week was the 13th time the Supreme Court has voted 9-0 that the president has exceeded his constitutional authority.” But that’s a stretch, at best.
  • Goodlatte and Democratic Rep. Xavier Becerra disagreed over whether President Obama has the authority to require federal contractors to pay their workers a minimum of $10.10 an hour. But while both confidently pronounced their claims, the issue is a matter of contentious legal debate.

In his 2014 State of the Union Address, the president lamented the gridlock in Congress and vowed that “wherever and whenever I can take steps without legislation to expand opportunity for more American families, that’s what I’m going to do.” Obama has followed through on that promise, issuing an executive order to raise the minimum wage for federal contract workers to $10.10 per hour and directing his staff to draft an executive order to protect federal employees from being discriminated against on the basis of gender identity. Those orders come on the heels of a 2012 order from Obama to stop deporting some immigrants who were brought to the country illegally as children.

Obama has stated that more executive orders may be on the way, saying before a Cabinet meeting on July 1 that “what I’m going to be continually pushing throughout this year and for the next couple of years is that if Congress can’t act on core issues that would actually make a difference in helping middle-class families get ahead, then we’re going to have to be creative about how we can make real progress.”

Republicans have accused the president of overreaching on his presidential authority, and House Speaker John Boehner announced that he plans to file a federal lawsuit challenging the constitutionality of Obama’s executive orders.

Boehner’s legal threat and a recent Supreme Court finding that Obama overstepped his authority with some recess appointments, brought the issue of executive overreach front and center on “Fox News Sunday” on June 29. Becerra and Goodlatte provided the opposing viewpoints.

Presidential Authority Rebuked?

Goodlatte made the claim that the Supreme Court’s “9-0 decision last week was the 13th time the Supreme Court has voted 9-0 that the president has exceeded his constitutional authority.” That’s a stretch, at best.

The only decision among the 13 in which the High Court clearly found Obama “had exceeded his constitutional authority” was the case Goodlatte said occurred “last week.” The late June decision in NLRB v. Noel Canning found that Obama had overstepped his authority in making three appointments to the National Labor Relations Board without Senate approval.

Richard Lempert, a nonresident senior fellow with the Brookings Institution and an emeritus law professor at the University of Michigan, reviewed Goodlatte’s list of cases for us and said that “only Noel Canning can be fairly cited to support this position.”

When we contacted Goodlatte’s office, spokeswoman Jessica Collins told us the lawmaker’s figure referred to the court’s rejections of the “times the administration actually ACTED to exceed [executive] authority and times the administration’s stated position was that they COULD exceed their constitutional authority.” That’s different from what Goodlatte said. But many of the cases don’t actually involve executive authority. As Lempert told us in an email, many “do reflect an effort to broadly define powers of the federal government (which encompasses both Congress and the Executive.)”

Adam Winkler, a professor of law at UCLA, told us that Goodlatte “overreaches a bit.” However, he says, “it’s clear the Obama administration, like the Bush administration before it, has been aggressively expanding presidential authority. This a worrisome trend — sufficiently so that exaggeration and misrepresentation aren’t necessary.”

Winkler mentions two cases among the list of 13 that are misrepresentations: McCullen v. Coakley, which “had nothing to do with presidential power” and instead was a challenge to a Massachusetts law requiring no-protest buffer zones around abortion clinics. The Obama administration wrote a brief supporting the law. Another, Arizona v. United States, “was widely viewed as a major victory for the administration in limiting Arizona’s anti-immigration law,” Winkler said in an email.

In that ruling, the Supreme Court sided with the Obama administration in three of four issues, finding that federal immigration law preempted the state law. Says Lempert: “On the fourth and probably the least consequential section, the Court sided with Arizona. This case hardly represents a rebuke to the Obama administration, and Obama’s power as President was never in issue.”

Our fact-checking colleagues at PolitiFact.com also consulted legal experts on Goodlatte’s claim and found it to be false. Tom Goldstein, publisher of SCOTUSblog.com, called Goodlatte’s figure “a concocted statistic.”

According to the spokeswoman, Goodlatte is pointing to nine Supreme Court decisions described in a report by Republican Sen. Ted Cruz of Texas, and another four unanimous decisions that have occurred since. Lempert told us Cruz’s characterization of the cases in his report “is for the most part dishonest.”

Several of the cases began during the George W. Bush administration, and the Obama administration continued advocating the same position. Also, Lempert says, these cases weren’t about the extent of presidential power, but “rather they concerned technical and jurisdictional issues or the meaning of statutory language.”

In one of the Bush-era cases, Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the administration contested a Lutheran church’s claim of a ministerial exemption to an employment-related suit involving a teacher of secular subjects. Religious organizations do have such an exemption from most suits involving employees in religious positions. “It was left to the courts to determine if this claim should be upheld,” Lempert says. “What we have here is a normal contest over how the meaning of a statute with substantial First Amendment implications should be defined.” Cruz, however, describes the case as an attempt by the Obama administration to give the federal government the power to “interfere with a church’s selection of its own ministers.”

In PPL Corp. v. Commissioner of Internal Revenue, the Obama administration defended a decision by a Bush IRS Commissioner to disallow certain tax credits related to income earned abroad. Two more cases that began under Bush:  Gabelli v. SEC, which concerned whether the statute of limitations on SEC fraud cases began when the fraud occurred or when it could have been discovered; and Arkansas Game & Fish Commission v. United States, in which the state sued the Army Corps of Engineers for harm caused to state property by the Corps imposing a temporary flood regime. (Cruz described the Obama administration’s defense as an effort to have power to “destroy private property without paying just compensation.”) Horne v. USDA involved raisin farmers fighting production quotas (since the early 2000s) and a question of court jurisdiction.

Two of the cases were Fourth Amendment law enforcement cases, not presidential authority questions. United States v. Jones, a case that began under Bush, concerned whether the FBI could use GPS tracking devices without a warrant, and United States v. Wurie concerned whether police could search cell phones without a warrant, a case that began with a 2007 Boston police case.

Finally, the three other cases in Goodlatte’s list were: Sackett v. EPA, a case that originated under Bush and concerned whether landowners could challenge in court a Clean Water Act compliance order from the Environmental Protection Agency; Sekhar v. United States, a case over whether the advice of a New York state attorney fit the meaning of extortion under the Hobbs Act; and Bond v. United States, which questioned whether a Pennsylvania woman who repeatedly tried to poison her husband’s mistress could be charged with violating a congressional chemical weapons treaty (a charge to which she pleaded guilty in 2007).

To be sure, there is some interpretation involved in Supreme Court cases, and rulings. Winkler says the Obama administration hasn’t fared well with the High Court in general. “This administration has lost an unusually large number of cases over the years. The Solicitor General usually wins about 70% of cases in which he’s a party at the Supreme Court. Over the past three terms, Obama’s Solicitor General has won less than half his cases.” But that depends on how you categorize wins and losses. In an article on SCOTUSblog.com, lawyer Andrew Pincus found a 71 percent win rate, noting that the multiple issues in some cases makes determining such a record difficult.

So, some may see the cases cited by Goodlatte as more demonstrative of a federal power issue than others. But Goodlatte claimed the Supreme Court has voted unanimously 13 times that “the president has exceeded his constitutional authority.” That’s not true.

Did Obama Overreach on Minimum Wage Order?

Becerra and Goodlatte disagreed over whether Obama has the authority to require federal contractors to pay their workers a minimum of $10.10 an hour. We like to settle such contradictory political claims when we can. But after researching the issue, we’ve concluded that while some legal arguments may be stronger and have more merit than others, this is ultimately a dispute that is likely to be decided in federal court. Nonetheless, we thought it would be instructive to lay out the arguments on both sides.

First, here’s the exchange between Becerra and Goodlatte:

Becerra, June 29: The president has the authority as the executive to implement the laws. If there’s a law that says we will pay a federal contractor money, the president can say, OK, federal contractors, you can’t gouge your workers because you’re getting taxpayer money to do the work. And so, therefore, the president can say, at least pay them the federal minimum wage. …

No, he’s not rewriting [the law], because he’s simply implementing it. He’s only doing it where he has the power as the executive for the federal government. He hasn’t set a minimum wage for everyone who works for private sector. That would require Congress.

Goodlatte: Well, I just want to say these are people who are working in the private sector, and the fact that their employer has entered into a contract to provide services for the government, but they also may do business with a whole host of other things doesn’t give him under the law the power to contract with them and to add a multitude of different conditions, including what they have to pay their employees.

Becerra: Sure it does, Bob. You know that. Those contractors don’t have a right to get taxpayer money. They enter into a contract with the federal government. They know the terms of the contract.

Becerra: He said, if you’re going to want to work for the federal government, get a contract from the federal government, you’re going to have to pay this minimum wage. There’s nothing wrong with that. You don’t have to contract with the federal government.

Goodlatte: The law doesn’t give him that authority.

On Feb. 12, Obama announced that he would be signing an executive order to raise the minimum wage to $10.10 for federal contract workers, effective for new contracts beginning Jan. 1, 2015. In a press release, the White House said the change would increase the pay of “hundreds of thousands of people working under contracts with the federal government … who are currently making less than $10.10 an hour.”

But more than just benefiting those workers, the White House contends that studies have found that boosting pay will “reduce turnover and absenteeism, while also boosting morale and improving the incentives for workers, leading to higher productivity overall. These gains improve the quality and efficiency of services provided to the government.”

That last claim is important because, strategically, it lays the legal foundation for Obama’s claim to have the authority to impose the higher wages for federal contract workers. Obama argues that his authority stems from the Federal Property and Administrative Services Act of 1949 (FPASA), which was enacted to promote “economy” or “efficiency” in federal procurement. The statute grants the president the authority to “prescribe policies and directives that the President considers necessary to carry out” this charge.

“Under the Federal Property and Administrative Services Act of 1949 — or the Procurement Act — the President has the authority to strengthen our procurement policies and to increase economy and efficiency in our procurement system,” White House spokesman Matt Lehrich told us via email. “Paying workers fairer wage can increase productivity and reduce turnover and therefore will lead to a better value for American taxpayers.”

The Congressional Research Service issued a report on “Presidential Authority to Impose Requirements on Federal Contractors” in 2011 and concluded that courts will generally uphold executive orders based on the FPASA — as this one on the minimum wage was — so long as there is an ” ‘attenuated link’ between the requirements and economy and efficiency.”

Congressional Research Service, June 14, 2011: Courts will generally uphold orders issued under the authority of FPASA so long as the requisite nexus exists between the challenged executive branch actions and FPASA’s goals of economy and efficiency in procurement. Such a nexus may be present when there is an “attenuated link” between the requirements and economy and efficiency, or when the President offers a “reasonable and rational” explanation for how the executive order at issue relates to economy and efficiency in procurement.

In other words, the president’s authority relies on demonstrating that his argument that a higher wage improves the economy and efficiency in procurement is “reasonable and rational.” Some on the right argue it is not.

Washington lawyers Rachel Mondl and Eugene Scalia, solicitor of labor for former President George W. Bush, wrote an opinion piece in the Washington Post arguing that the legal basis for the president’s order is “shaky.” They called the White House claim that raising the minimum wage would improve the “quality and efficiency” of federal procurement “not credible.”

Mondl and Scalia, Feb. 20: No purchaser insists that its suppliers pay workers more in order to lower the cost of goods. To the extent that businesses can deliver better service at lower cost by raising wages, they’ll do so themselves in response to market incentives, and their increased efficiency would result in a lower overall bid price.

Goodlatte’s office cited that piece as well as a post for the National Review Online by Peter Kirsanow, an attorney, member of the U.S. Commission on Civil Rights and a former member of the National Labor Relations Board. Kirsanow argued that Obama’s order is “unconstitutional” based on the Supreme Court’s decision in Youngstown Sheet and Tube Co. v. Sawyer. The case arose during the Korean War after President Truman attempted to avert a nationwide steel workers strike in 1952 by issuing an executive order to seize and operate most of the steel mills. The Supreme Court struck down the order.

Kirsanow cites an opinion in that case that “when the president takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.”

Kirsanow argues that “Congress has made its will regarding the minimum wage for federal contractors abundantly clear in four separate statutes: The Service Contract Act, the Davis Bacon Act, the Walsh-Healey Act, and the Fair Labor Standards Act.”

Kirsanow, Feb. 17: Under those statutes, the minimum wage for many, if not most, employees of federal contractors is the prevailing minimum wage for employees in the specific job classification in the locality where the work is to be performed. For the remaining classifications of employees for whom no prevailing minimum wage exists, the minimum wage is slotted into the minimum for similar jobs, or is governed by the minimum set by Congress in the Fair Labor Standards Act, i.e., $7.25.

Other legal scholars, however, are convinced Obama will prevail. The Fair Labor Standards Act “sets a floor,” Steven Schwinn, an associate professor at John Marshall Law School wrote on his constitutional law blog. “Nothing in the FLSA prevents an employer from paying more than the minimum,” Schwinn wrote. “And nothing prevents the President from ordering executive agencies to require contract bids to include wages higher than the minimum.”

Schwinn, Jan. 28: But the action is hardly unprecedented, and probably supported by the President’s statutory authority, let alone his constitutional authority over the executive branch. In other words, the action is probably a valid exercise of power that Congress granted the President, not a usurpation of power in violation of Article II limits.

There are numerous instances in U.S. history of presidents mandating via executive orders certain requirements of federal contractors.

As the Congressional Research Service put it, “Presidents from Franklin D. Roosevelt through Barack Obama have issued orders that seek to leverage the government’s procurement spending to promote socio-economic policies that some commentators would characterize as extraneous to contractors’ provision of goods or services to the government.”

The CRS report highlights a number of key cases regarding presidential authority to impose requirements on federal contractors and concludes, “Presidents have broad authority under FPASA to impose requirements upon federal contractors.” However, the report cautions, “this authority is not unlimited, and particular applications of presidential authority under FPASA have been found to be beyond what Congress contemplated when it granted the President authority to prescribe policies and directives that promote economy and efficiency in federal procurement.”

Since no president has ever before required contractors to pay a rate higher than the federal minimum wage, the issue of whether Obama has the authority to do it may ultimately be decided in federal court. Those who make definitive statements about whether the president has the authority to do it are expressing legal opinions.

Correction, July 7: The original version of this story incorrectly said Obama issued an executive order to regulate carbon emissions. That was a federal regulation, not an executive order.

— Robert Farley and Lori Robertson