President Obama’s State of the Union Address faces a Congress frozen in partisan gridlock while his own popularity has taken a hit over the past year. What chance he will be able to get anything done over the next twelve months?
Last year, Obama watched helpless as his legislative agenda stalled in Congress. His plans for immigration reform and a bill to expand background checks for gun buyers got nowhere.
Though Congress has recently announced deals on a new budget and a farm bill, and talk of immigration reform has picked up again, the chance of Republicans becoming willing partners with the president is remote.
Facing this reality, Obama’s State of the Union will stress that if Congress refuses to act he is willing to enact his agenda through executive actions. For a president to govern through executive action is often controversial, but on priorities like income inequality to climate change, Obama is unlikely to make progress unless he flexes all the powers of his office.
"I’ve got a pen, and I’ve got a phone. And I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward," Obama told reporters earlier this month. “I’ve got a phone that allows me to convene Americans from every walk of life, nonprofits, businesses, the private sector, universities to try to bring more and more Americans together around what I think is a unifying theme: making sure that this is a country where, if you work hard, you can make it.”
In keeping with this promise, Obama will announce a new rule raising the minimum wage for employees of federal contractors to $10.10 per hour in the absence of Congress raising the minimum wage for all workers. This executive action has been a priority for progressives and some Democrats in Congress.
"For the use of executive orders itself, Presidents tend to do this when they are facing strong opposition in Congress," said John Hudak, an expert on the subject of presidential power at the Brookings Institution. "The reality of the situation is that Congress isn't getting anything done. It's not just that Congress won't do what the president wants, the problem is that Congress won't do anything."
"The office of the president is an incredibly powerful position, more so than people realize," Hudak said, predicting an uptick in unilateral presidential action over the remainder of Obama's presidency.
The use of presidential power is nothing new, and has increased in the 20th and 21st centuries as the federal government itself grew in size and responsibility. President George W. Bush used his executive power to create a Office of Homeland Security -- before it became it's own department -- following the September 11 terrorist attacks.
More controversially, Bush used an executive signing statement to reserve the right to use torture in interrogations despite a ban passed by Congress. Before Bush, President Clinton used the regulatory process to push his agenda, particularly to influence environmental policy.
While executive action is commonplace, presidents don't generally threaten to use it in State of the Union addresses, largely because the tone of the event is meant to bring people together, not announce that the executive branch is setting off on a path of its own. In fact, the word "executive order" has only been used 10 times in a State of the Union, three of which were by Obama before tonight.
"There are real things he needs to work on that can't be done by executive order," said Lori Sanders, a policy analyst at the libertarian R Street Institute. "If he starts using more executive orders in places that he can, I think it makes him less likely to accomplish other aspects of his agenda."
On the other hand, the current situation is different from in the past. Andrew Rudalevige, a public policy expert at Bowdoin College, says old memoranda from John F. Kennedy's administration, for example, warned about the political ramifications of pushing executive actions. But that's not likely to be something Obama is too worried about.
"You do provide ammunition to the opposition. You have to decide whether that is going to derail other things that you want to do," Rudalevige said. "My guess is that the administration at the moment has decided, 'Well, they're not going to do anything anyway.'"
Obama's executive actions have already garnered Republican outcry in the past. From pushing back deadlines for implementing portions of the Affordable Care Act to his deferred action program to stop deporting young undocumented immigrants in the absence of a long-awaited DREAM Act from Congress. Other executive actions the president has taken, such as making recess appointments, have ended up in the courts.
“The President says he has a pen to sign executive orders and a phone to rally support," Senator Roy Blunt, R-Missouri, said over the weekend in the weekly Republican Address, anticipating Obama's move toward executive action. "The Congress should insist that he find the Constitution and follow it."
Since this is an election year, however, Obama has more than his own agenda to think about. As part of their election strategy, Democrats are pushing the issue of income inequality, and Obama is expected to address that tonight, including calling on Congress to raise the minimum wage for all workers.
Note: Newsweek will be covering the State of the Union live tonight at 9:00 pm ET.