The perils of bypassing Congress

If a president's first term is about reelection, his second is about history. And as President Obama made clear in his inaugural address last week, he is hoping to make history by tackling climate change.

But as he butts up against Congress on gun control, immigration reform and a slew of budget battles, the president is expected to pursue his climate agenda through actions he can take without congressional approval, the most prominent of which will be the Environmental Protection Agency’s finalization of rules restricting carbon dioxide emissions from new fossil-fueled power plants, which is expected this spring.

Attempting to make major changes through executive action is a strategy with many pitfalls, says Michael McConnell, a constitutional law scholar at Stanford University. Executive actions lack permanence. Courts could find that the president or executive agencies overstepped. “In general, an executive can move faster when it acts on its own, but the danger is that nine or 13 months later, they’re going to find that what they’ve done is struck down,” McConnell said. 

Legal challenges to Obama’s climate actions are all but guaranteed. Even if they aren’t successful, they may delay implementation of new rules and regulations, making progress in Obama’s remaining four years difficult. 

Pursuing climate change through the White House rather than Congress also runs the risk of being a slapdash approach to the problem rather than a comprehensive solution.

“Long term, you do need Congress’s support,” Alden Meyer, director of strategy and policy for the Union of Concerned Scientists, said of the administration. “To get the kind of deep reductions and the real transition away from polluting fossil fuels over the next several decades, you need to have some bipartisan support; you need to have Congress going along with it and future presidents also wanting to build on this. I think [Obama administration officials] know that.”

Indeed. “I continue to believe that whenever we can codify something through legislation, it is on firmer ground. It's not going to be reversed by a future president. It is something that will be long-lasting and sturdier and more stable,” Obama said in a recent interview with The New Republic.

With debates over immigration, gun control, and the nation’s fiscal future raging, however, the chances of Congress taking on climate legislation at the moment is slim. Still, it’s possible that some tweaks to climate policy could be made in the context of other legislation (tax incentives, for example, are a popular way to pursue climate goals).

So, can Obama become the climate-change president through executive action alone? History holds out hope. Even though presidents are largely remembered for their legislative accomplishments (think President Reagan’s tax reform, President Clinton’s welfare reform, President George W. Bush’s education agenda, and even Obama’s Affordable Care Act), Barbara Perry of the University of Virginia's Miller Center points to PresidentTruman, who gets a great deal of credit for the country's Medicare system—despite the fact that the law was passed more than 12 years after Truman left office.

Truman, she says, jump-started the national conversation on public health insurance. Though his proposals failed to pass Congress, he used his executive power to direct funds to construct hospitals, expand medical aid to the needy, and provide for expanded medical research. When President Johnson finally signed the bill into law in July 1965, he did so at the Truman Presidential Library in Independence, Mo., with Truman by his side. Crediting Truman in a speech at the signing ceremony, Johnson also enrolled the former president as the first Medicare beneficiary.

The lesson for Obama? Even if it takes a dozen more years to bring Congress around to the idea of comprehensive climate change legislation, Obama's work won't be for naught—and he may even be credited with paving the path on the issue.

In the meantime, the White House has pledged to forge ahead without Congress on climate. “[We will] continue to look for tools, administrative actions that we can take that don’t require Congress and in many cases don’t require federal dollars,” Brian Deese, deputy director of the White House National Economic Council, said at an event on the new energy economy hosted by National Journal and The Atlantic last week.

Here are some actions Obama can take, sans Congress:

Appointments. The president could be losing three strong advocates for action on climate change in his Cabinet: Energy Secretary Steven Chu is expected to resign, and the EPA administrator and the secretary of the Interior have already announced their departures. His choices for successors will say a lot about how committed the administration is to an aggressive climate-change agenda.

Sen. John Kerry, the Massachusetts Democrat who has been nominated to be secretary of State, pledged at his confirmation hearing last week to be a “passionate advocate” of using energy policy to solve climate change.The State Department leads U.S. negotiators on international agreements to address climate change, although any new commitments would need approval of the Senate. State is also charged with determining whether a permit for the proposed Keystone XL pipeline, which would carry oil from Canada's tar sands to U.S. refineries on the Gulf Coast, is in the national interest.

Regulation and enforcement. The biggest—and most widely expected—executive action is the EPA’s release of final rules limiting carbon dioxide emissions from new power plants. Additional action may be taken to address methane emissions from the oil and gas industry, something the Clean Air Task Force urged Obama to tackle in an open letter to the president earlier this month.

EPA will play the biggest, but not the only, role in implementing Obama’s second-term vision for climate change. A host of other departments have climate-related authority: Interior will be involved in discussions over oil drilling, fracking, and offshore wind turbines. Energy can set efficiency standards for appliances and buildings. The Agriculture Department is involved in implementing mandates for biofuels, such as corn-based ethanol. The Commerce Department oversees the National Oceanic and Atmospheric Administration, which interprets and explains climate science. The Transportation Department has a say in fuel-economy standards.

Public pronouncements. Next month’s State of the Union address will bring more clarity to just how Obama plans to tackle climate change. The Senate confirmation hearings for key Cabinet posts should also shed some light on just how rocky Obama's path forward will be.