In advance of President Obama's State of the Union address, he and his aides have been talking about his desk set. "I have a pen and I have a phone," the president has said, a declaration meant to convey that he will act if Congress doesn’t. "The president views the power of his presidency in two areas," political adviser Dan Pfeiffer said on CNN's State of the Union. "His pen, which is the executive orders, the presidential memorandums. Also the phone, where what he can do is he can pick up the phone, bring together American citizens, and business to commit on key issues."
The MacGyver presidency is upon us. In the eponymous 1980s television show, the hero was regularly getting himself out of scrapes by using everyday objects in unexpected and winning ways. In one episode, he combined a microphone, a rubber mat, and a candle. The result: a defibrillator. In another, he used branches and rosary beads to make a rock catapult. The series fizzled out before he could achieve the promise of combining a colander and a first-edition Victor Hugo.
In the sixth year of a presidency, amid acute partisanship and low approval ratings, a president and his aides are also tied down and running out of options. So they too are trying to work magic from simple household items like a phone and a pen.
Don't get your hopes up. MacGyver never had to deal with the Constitution and the separation of powers—two things the president has often said limit his range of motion. Plus, it's a political year and if he were to truly stretch the office of the presidency to overcome Republicans in areas like environmental protection, he might create political fights that would backfire on Democrats running in tough races in Republican parts of the country.
Going it alone with his desk set wasn’t his first choice. He has tried bipartisanship, schmoozing (remember last year's dinners with Republican senators?), bullying, and rallying national opinion. He even dreamed winning re-election would give him warrants for action. The Obama team has largely discarded these stratagems because they weren’t effective, whether because the president didn’t try in earnest or because he faced immovable opposition.
So now the president is trying another gambit. It’s a sign of creativity, an important presidential attribute. Bold, persistent experimentation was what FDR and Bill Clinton called it. They said it was a crucial recipe for the office.
But how bold? How persistent? "When you're involved in sales you have to worry about overpromising," says Ohio State law professor Peter Shane, an expert in separation of powers. "The president generally does not have any unilateral authority to create on his own rights and legal obligations for the general public."
The president agrees with that view. David Remnick writes in a recent profile in The New Yorker about Obama calming a crowd of Democratic activists excited by the mere mention of executive orders. “Before everybody starts clapping, that’s not how it works. We’ve got this Constitution, we’ve got this whole thing about separation of powers. So there is no shortcut to politics, and there’s no shortcut to democracy.”
Another reason to temper expectations is that the president has been trying to use executive orders to go around Congress for quite some time now, which means this year’s effort is not as revelatory a pathway as it is sometimes presented by his aides.
This New York Times story, headlined "Shift on Executive Power Lets Obama Bypass Rivals," written almost two years ago, reads just like the ones from this weekend. Each has the moment of revelation when Obama called on aides to look for ways around the roadblocks and each has the promise of tough action. "If Congress refuses to act, I've said that I'll continue to do everything in my power to act without them," the president declared in March 2012. And so he has, directing the Justice Department to stop defending the Defense of Marriage Act, issuing a memorandum to stop the deportation of children of undocumented workers, and cutting refinancing fees for federally insured mortgages.
The president and his team say he will take executive action on the environment and the economy, with a special emphasis on improving social mobility. This may require a smaller definition of action and promoting a longer timeline for results than administrations usually use. An aide described one of the president’s proposed actions as merely “starting a conversation.” Or, the president might simply try to cajole CEOs of private companies.
Sometimes the president will hope to just plant a program he hopes will grow in other administrations. Earlier this month the president announced the creation of a manufacturing hub in North Carolina to spur innovation. It’s a tiny version of a larger program he proposed in last year’s State of the Union address. It won’t have a big effect on the economy, but if the program succeeds perhaps it will create the appetite for developing it further in later administrations. “Executive power is a seed,” says John Hudak of the Brookings Institution, author of a forthcoming book Presidential Pork. “Once you get a project up and running, if people hate it, a president can get rid of it, but if it takes root and interest groups get involved and the public likes it, it gets harder and harder to reverse that action. A program that develops through this executive action then gets authorized by Congress. The Peace Corps started that way.”
Other actions the president could take would be to encourage employers with federal contracts to hire the long-term unemployed, or mandate it within the federal workforce. (Update, Jan. 28, 7:15 a.m.: The president has decided to raise the minimum wage for workers under new federal contracts to $10.10 an hour, up from $7.25.) He could promote new regulations that would protect consumers through the Consumer Financial Protection Bureau or go ahead with the long expected new performance standards from the EPA regulating carbon emissions from new and existing power plants. There’s more that can be done with clean energy. The Center for New Energy Economy suggested 200 executive actions on clean energy alone.
These larger actions will create political challenges that could break in unpredictable ways. On the one hand, they could create clarifying fights with Republicans over issues Democrats care about. Such fights might also bleed over into the budgeting process as Republicans try to use policy riders to bar funding to some of the president’s new executive gambits. Fights can be useful in rallying the base, but they can also put Democrats running in Republican states in a pickle. They are already fending off attacks over the Affordable Care Act, which their opponents have successfully portrayed as a big government power grab that is ruining the economy. New EPA regulations would fit into that same storyline.
In MacGyver’s world, the pen and the phone could be used to bring peace to Fallujah, so perhaps the more realistic test for the president’s sixth State of the Union is the one faced by MacGyver’s scriptwriters in the show’s sixth year. Will the audience buy it? The White House team has to hope they have better luck. MacGyver was canceled the next year.