JOURNAL EDITORIAL REPORT

The unilateral presidency: How far will executive orders get Obama?

President Obama vows to go it alone and act on his agenda, even if Congress won't

 

This is a rush transcript from "Journal Editorial Report," February 1, 2014. This copy may not be in its final form and may be updated.

PAUL GIGOT, HOST: This week on the "Journal Editorial Report," President Obama vows to go it alone and act on his agenda even if Congress won't. But just how far will executive orders and regulation get him?

Plus, he's taking his inequality tour back on the road. But is economic mobility really on decline in America?

And just in time for the Super Bowl, the debate over football safety heats up. Would you let your son play in the NFL?

(BEGIN VIDEO CLIP)

PRESIDENT BARACK OBAMA: Wherever and whenever I can take steps --

(APPLAUSE)

-- without legislation to expand opportunity for more American families, that's what I'm going to do.

I'll act on my own to slash bureaucracy and streamline the permitting process for key projects.

I will issue an executive order requiring federal contractors to pay their federally funded employees a fair wage of at least $10.10 an hour.

I intend to keep trying, with or without Congress, to help stop more tragedies from visiting innocent Americans in our movie theaters and our

shopping malls or schools like Sandy Hook.

(END VIDEO CLIP)

GIGOT: Welcome to The "Journal Editorial Report." I'm Paul Gigot.

That was President Obama in his State of the Union address Tuesday night vowing to go it alone if Congress refuses to act on his stalled agenda. It's hardly a new approach for the administration, which has made ample use of executive orders and regulation in the past. So what can we expect as his second term wears on? And do Republicans have any recourse?

Let's ask Wall Street Journal columnist and deputy editor, Dan Henninger; Washington columnist, Kim Strassel; and assistant editorial page editor, James Freeman.

So, Dan, we at The Journal argued in the past, for a long time about energy in the executive, as Alexander Hamilton put it. That we need that. You need a president to lead. What's wrong with the president of the United States saying, I'm going to lead, I'm going to do this?

DAN HENNINGER, COLUMNIST & DEPUTY EDITOR: We have never said the president should simply set the second branch of government aside, Congress, and have nothing to do with them. That's why we are talking about the unilateral presidency. And Obama has been going in this direction since the beginning of his term. After the 2010 elections is when he started doing things like deciding to enforce the Dream Act on his own.

GIGOT: You think there is a difference in degree and kind with what this president is doing and previous presidents have done? Am I reading you fairly?

HENNINGER: Yeah. Some of the things he has done I think have been described as literally breaking the law. For instance, telling states they can get exemptions from the No Child Left Behind Act and things like that or the ObamaCare decisions that he made, which is simply --

GIGOT: Waiving.

HENNINGER: -- returning the -- waiving the requirements for the mandate.

GIGOT: Employer mandate.

HENNINGER: Employer mandate. Then, of course, the recess appointments that he made to the National Labor Relations Board.

This is different than taking executive decisions and executive authority or regulatory decisions that simply -- most discretion to the regulatory agencies have been accorded over time. This is a different degree all together.

GIGOT: Kim, how much can a president, this president really accomplish going out on his own? Can he fulfill an awful lot of his agenda this way?

KIM STRASSEL, WASHINGTON COLUMNIST: A fair amount. There are obviously limits. For instance, in the gun debate, he really wanted gun legislation that would, for instance, restrict the capacity of magazines.

He needed Congress to do that. He has not been able to do that by executive order. But there are tons he can do. And you do see him doing it in places like the Environmental Protection Agency.

GIGOT: Right.

STRASSEL: He didn't get Congress to pass a Cap-and-Trade bill for him but he is, in essence, implementing it through regulatory fiat via the EPA.

GIGOT: Right.

STRASSEL: And he will continue to do that. He laid out in the State of the Union this week the areas where you will see continued action like that.

GIGOT: James, on the EPA, what is the recourse if the president, when he moves on regulation like this, is there a response? Obviously, it can't be challenged in the courts, and you're seeing that. For example, the recess appointment decision probably will be overturned in the coming months by the Supreme Court. But some of these other things, are the courts the only recourse?

JAMES FREEMAN, ASSISTANT EDITORIAL PAGE EDITOR: You have a few options. As you mentioned, the justices all seemed skeptical of his claim that he and not Congress declares when Congress is in recess. If the courts can help, that's great. If not, Congress does have a role to play.

They have the appropriations power. They can say in the annual bills when they fund the government, you may not spend any of this money implementing X, Y or Z. They also --

(CROSSTALK)

GIGOT: But the Senate will say you must fund it because the Senate is controlled by the president's party.

FREEMAN: OK --

(CROSSTALK)

GIGOT: That doesn't work very well.

FREEMAN: Another option is there are ways that Congress can effectively force votes, referenda on specific federal regulations. Again, you need a Senate to cooperate. But I think if you are someone who wants to set the constitutional limits again on the president, what you think about is at least forcing some of these votes, making those Democratic Senators, many of whom are up this fall, affirm whether or not they support the president's unilateral action.

GIGOT: Dan, I also think this is part -- the politics isn't about the president reasserting his leadership. He had a terrible 2013. His base is demoralized. He wants to show them, look, I can still accomplish something. So look at me. I'm acting. I'm doing something. Even if he ends up exaggerating the amount of things he can get done.

HENNINGER: There is always the little issue of what exactly it is he is doing. Substance at some level has to matter.

And the problem with a lot of the Obama agenda, it's hard to see where any of the things he wants to do is going to produce more economic growth than we have had. Most of what the Environmental Protection Agency is doing, such as trying to suppress, if not shut down electrical utilities, has a downward effect on states out in the middle west who produce coal or use it in utilities. He went through this in his first term where you had Democratic Senators pushing back against the president's carbon control initiatives. If the economy continues to stay -- if employment stays high, there will be political pushback against what the president is doing.

GIGOT: On that point, Kim, do you think -- I mean, we're seeing -- we had Ted Cruz write in our paper this week, "The Imperial Presidency of Barack Obama." Republicans seem willing to make this a big issue. But does this have traction politically this year? Is this something that is going to fire up Republicans and worry enough voters to make a difference?

STRASSEL: Absolutely. That was the risk of this State of the Union address. Because, as you said, yes, he wants to reassure his own base that he has some juice. But this does not go over very well with Independents and obviously with Republicans. It's growing as a theme. He has energized that talking about it so much.

One of the biggest problems that the president has is that when you look at the poll data looking at him, he lacks trust among the American people. This will not help.

GIGOT: OK, thanks, Kim.

Still ahead, fresh off his State of the Union speech, the president takes his inequality tour back on the road. But is economic mobility in America really on the decline? We'll check the numbers, next.

(BEGIN VIDEO CLIP)

OBAMA: Inequality has deepened. Upward mobility has stalled.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

OBAMA: A dangerous and growing inequality and lack of upward mobility that has jeopardized middle class America's basic bargain that if you work hard, you have a chance to get ahead. I believe this is the defining challenge of our time.

(END VIDEO CLIP)

GIGOT: That was President Obama in a speech late last year calling inequality and declining economic mobility America's greatest challenge.

It's a theme he revisited in this week's State of the Union address, promising action on a host of issues he believes will level the playing field. But is economic inequality in America really on the rise?

We are back with Dan Henninger, Kim Strassel and James Freeman. And Wall Street Journal Political Diary editor, Jason Riley, also joins the panel.

So, Kim, the defining challenge of our time?

STRASSEL: I don't think so. There is a reason politically that the president is doing this. It's a chance for him to roll out criticism of Republicans, claim that all the evils of the world, the fact they won't push his policy proposals, but it's also a chance, Paul, to divert attention away from his own failing economic policies.

GIGOT: OK.

So, James, you've been looking at the evidence here. Income inequality increasing? What about -- or not? And economic mobility, which, of course, I think is really, really what we care about, is that also declining?

FREEMAN: Economic mobility is not declining. This is 180 degrees from what the president is saying and even what the Republicans are saying.

Everyone in Washington now agrees that economic mobility is going away in America, and they are flat wrong. And the --

GIGOT: All right, what's your evidence?

FREEMAN: The evidence comes from Mr. Obama's own Treasury Department.

Apparently, the memos aren't getting up to the secretary and then over to the White House. Because three economists at Treasury just published a study in "The National Tax Journal," and what it shows is tremendous economic mobility, the ability to start out in humble circumstances and to rise in America. It's roughly 70 percent of the population that begins in the lowest 20 percent of the income bracket, at birth, ends up in a higher bracket. This is just what you would hope for in an American system that allows people to rise on their talent and hard work.

GIGOT: That was over about 20 years.

FREEMAN: Right.

GIGOT: It's a very long study, very detailed, IRS records. A lot of detail. Very, very comprehensive study.

FREEMAN: Very thorough. And you are seeing people with the ability to rise. You are also seeing people with the ability to fall. There is a narrative that this 1 percent, the rich people that the president and others love to vilify, are locked in this permanent status above the rest of us. But the truth is they drop out of the 1 percent all the time, year- to-year. So you are seeing a very dynamic picture. And the American dream is alive and well.

GIGOT: One of the fascinating things in that study, James, people are rich for a year.

(LAUGHTER)

A lot of people just tend to be rich for a year. They are up there for 1 percent.

JASON RILEY, POLITICAL DIARY EDITOR: Yeah.

GIGOT: They cash in a bonus, stocks they built up for a long, and then they fall out.

(LAUGHTER)

RILEY: The left likes to study income brackets versus individuals who often move between brackets over the course of a lifetime. Study after study has shown -- A study put out a couple of years ago looked at a couple of thousand tax returns. It was pretty comprehensive. Found that in 1996, more than half the people who were in the 1 percent were no longer there 10 years later. And in the bottom 20 percent, more than half of them were no longer there 10 years later. So, not only is there mobility, it's working both ways, from the top and the bottom, which is what we want.

GIGOT: How should we respond politically, Dan, to this kind of agenda?

HENNINGER: I think we should run straight at it. You have to ask yourself, what is going on here? I think what is going on here is the left and the Democratic Party -- two things. I believe they do believe this stuff. They see the American society as essentially static, that people get stuck down here and the rich are up always up there. In their view, the solution to that is to tax people, the upper middle class, flow that money down below, and equalize America. The only way they can sell that is to create enormous resentment of people up here. That's the strategy right now.

This is not an accurate description of the way American society works.

But they do believe it so they are determined to get this resolved.

GIGOT: It's fascinating, Kim. The president in the State of the Union didn't use some of the same inequality rhetoric he has in the past.

He talked about economic opportunity, which resonates I think much more with the American public. Was that a deliberate change? I assume it was poll tested.

STRASSEL: Yes, absolutely.

(LAUGHER)

I mean, if you have approval ratings like the president has right now, you don't want to come out and sound angry. You want to have a message of hope. He adopted what is essentially a Republican language on this issue, which is, as you said, about opportunity. Now is you listen carefully though, the kernels of what is, in fact, coming from the Democratic Party in terms of a tax on Republicans. It was very evident in that speech.

It's going to be a war on women and it's going to be, as we were discussing here, a war on the rich.

GIGOT: Jason, what about the agenda, extending unemployment benefits, raising the minimum wage that the president offered? Do those really do anything about income mobility and inequality?

RILEY: No. They don't add to economic opportunity either. Raising the minimum wage is going to help people who already have a job, provided they can keep it. But it's not going to help people out of work and trying to get into the labor force. That is not a way you expand opportunity for people who want to climb the economic ladder.

GIGOT: Yeah. It seems focus should be on upward mobility, economic opportunity and on growth. Because if we don't have growth, you'll never get that economic mobility.

HENNINGER: And education.

GIGOT: And the key thing about economic mobility, education reform to make sure the poor can have the skills to get ahead.

All right. Still ahead, on this Super Bowl weekend, renewed debate over the dangers of football. America's fan-in-chief has once again weighed in, saying he wouldn't let his son play in the NFL. So just how dangerous is the game?

(COMMERCIAL BREAK)

GIGOT: Just in time for the Super Bowl, a renewed debate over football safety. President Obama, a well-known fan of the game, recently reiterated his feelings on its dangers, telling "New Yorker" magazine he would not let his son play on the professional level. The NFL has been sued by more than 4,500 players for issues relating to head injuries.

College and high school play is coming under increased scrutiny. Youth leagues in the United States are even seeing a drop in participation. So just how great are the risks?

We are back with James Freeman and Jason Riley.

So, Jason, long-suffering Buffalo Bills fan.

(LAUGHTER)

Will not have a firm rooting interest here. But what do you make of the president's remarks?

RILEY: Well, first, Paul, I think I prefer him talking more about football and less about health care and the economy.

(LAUGHTER)

GIGOT: That's an ideological aside.

(LAUGHTER)

RILEY: Listen, I don't think concussion studies can be dismissed out of hand. I don't have a problem with the league trying to make the game safer; saying don't hit with your helmet, hit with your shoulder; hit between the knees and the neck, that sort of thing. I think that doesn't ruin fundamentally the game. And I don't also think that these head injury studies suggest football needs to be banned or anything that drastic.

But when it comes to parents and where they steer their children in terms of which sports, I can say that my father played professional football in Canada back in the '60s.

GIGOT: Right.

RILEY: He didn't suffer any head injuries, but he did have constant shoulder surgeries and knee surgeries and wrist surgeries over the years.

It took a toll on his body. He steered me consciously towards other sports growing up. And he said, if I had to do it over again, I probably would have gone with the baseball or basketball instead.

GIGOT: James, the Freeman household, you've got rambunctious boys.

What do you tell them?

FREEMAN: Yeah, they play football. I think all of life is a trade- off. It's a balancing of risks. I think the problem, when people focus on some of these stats -- and I think we are going to get more research and we're going to learn more. There is cause for concern. But you have to remember, there is no risk-free alternative. If you were saying my number- one goal is to prevent deadly threats to children, you would say stop bike riding. You might say keep them far away from automobiles under any circumstances.

GIGOT: What about the concussion evidence?

(CROSSTALK)

FREEMAN: There is --

GIGOT: Is it unique? Is it worse in football than it is for other sports?

FREEMAN: I think that's fair to say. But it's a complicated picture the more you look into it. Your alma mater, Dartmouth, an interesting study showing really cause for concern recent around both football and hockey, that you may have some effect on the brain, not from concussions but repeated strong hits.

GIGOT: Are these at the professional level or at the university level?

FREEMAN: These are college students.

GIGOT: College students.

FREEMAN: So what that means is, OK, if you're saying we are going to try and take risk out of competitive sports, you may be getting rid of hockey along with football. Then when you go deeper in NCAA data, you see football is high on the concussion rate but it's not -- people may be surprised to see how high the rates are for field hockey, for soccer, for some other sports that are not thought of as being especially brutal. So I think as you get into this question of risk analysis -- and we ought to get more data -- I think people are going to maybe get more of a perspective that there are benefits to team sports. There are offsetting elements in terms of character building and things that we all appreciate in society.

GIGOT: Jason, take that point on, this alternative issue because we have a report in "The Journal" this week that team sports participation across the board is down among young people. That can't be good if you are sitting in your room on Instagram or working Grand Theft Auto, right?

RILEY: No. No. It's not.

(LAUGHTER)

And we want active kids. Now some of the explanation for that might be in more kids specializing in one sport. Kids used to play a lot of sports. Now there is evidence people specialize and concentrate on one sport, which will lead to decline in participation across the board. But, no, we want active kids. And we don't want them sitting around playing video games all day. But there are many things you can do.

And my only point is that I don't think the concern Obama expressed is out of bounds or something that a lot of American parents haven't thought about themselves.

FREEMAN: I think it's -- he has to remember, he is the president. To say, I wouldn't let my son, if I had one, play football, I think is a fairly broad statement, and it would have been nice to have qualifiers in there, some perspective on the risks.

GIGOT: All right, gentlemen.

We have to take one more break. When we come back, "Hits and Misses"

of the week.

(COMMERCIAL BREAK)

GIGOT: Time now for "Hits and Misses" of the week -- Jason?

RILEY: This is a miss for Hillary Clinton, who said that her biggest regret as secretary of state was the Benghazi, Libya, attacks in 2012. I think, Paul, that this is not the same as an apology or taking responsibility for what happened. This is more about positioning herself for a 2016 run. There was this bipartisan Senate report very critical of the State Department. She thinks that might harm her presidential run and she is trying to put this behind her.

GIGOT: All right, Jason.

Kim?

STRASSEL: A miss for Senate Majority Leader Harry Reid, who is now blocking President Obama's call for Congress to pass legislation to fast- track trade deals. It could be that Mr. Reid just doesn't like trade. It could be he's trying to protect his members from a sensitive vote. Or it could be, Paul, that this is the return of that Democratic ploy where you wait for an election year, you tee up an issue that the business community cares about, and then you suggest that that priority is dead until the campaign money starts flowing. The business community might think it better for them to just simply try and elect people who really do support trade.

(LAUGHTER)

GIGOT: All right.

Dan?

HENNINGER: Well, even more frightening --

(LAUGHTER)

-- Senator Tom Harkin, the Iowa Democrat, was in Cuba last week and he claims he went on a 186-mile walk out in the country side and concluded the Cuban health system is really quite remarkable, very good. Now, look, we have had admirers in the past of the dungeon paradise. But this one is interesting. Tom Harkin is the chairman of the Senate Health and Education Committee. These are the guys who wrote the rules for the Affordable Care Act. Does this mean ObamaCare is going to gradually turn into the Cuban health care system?

(LAUGHTER)

GIGOT: Maybe he should retire there, Dan.

(LAUGHTER)

All right. And remember, if you have your own "Hit or Miss," please send it to us at jer@FOXnews.com. And be sure to follow us on Twitter as well at JERonFNC.

That's it for this week's show. Thanks to my panel, especially to you for watching. I'm Paul Gigot. Hope to see you right here next week.

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