Ten years ago this week, with his legislative agenda stalled in Congress, Barack Obama created a new way to pursue his policies.
At his first Cabinet meeting of 2014, Obama stated, “I’ve got a pen and I’ve got a phone,” coining a phrase and a pathway that has had deleterious implications for the presidency, and for the nation.
This was no mere rhetorical flourish. Obama was engaging in a sea-change in how to pursue his policy agenda.
By explicitly saying he’d pursue his policy agenda via executive action, Obama was rejecting the idea that his role was executing legislation duly passed by Congress.
He would skip the practice of reaching out to Congress to pass legislation he sought.
Obama’s approach was an effort to end-run the separation of powers, and presented an unfortunate model for a unilateral presidency that lingers today.
The metaphor caught on fast.
Slate’s John Dickerson said: “The MacGyver presidency is upon us,” referring to the TV character who invented situation-saving devices from ordinary materials found around him.
Then-House Speaker John Boehner warned: “I would remind the president he also has a Constitution and an oath of office that he took.”
Obama used his “pen and phone” aggressively in 2014:
- Expanding the Deferred Action to Childhood Arrivals program, protecting additional migrants from deportation.
- Increasing the minimum wage for government contractors by fiat.
- Setting up new employment protections for LGBT employees of federal contractors.
- Creating a task force to govern policing policies
- Limiting carbon emissions by regulation.
- Designating 13 new national monuments.
A 2016 report from the American Action Forum estimated that just nine of Obama’s unilateral actions imposed a cost to taxpayers of $31 billion.
Obama’s innovation got little pushback at the time.
As Reason’s Damon Root noted, “many of Obama’s fervent liberal supporters pretended to see nothing wrong with such obvious abuses of executive power.”
Yet many of those same supporters would not like the example Obama provided for his successor.
Like Obama, President Donald Trump seemed annoyed by our system’s constitutional limitations. He was eager to find areas where he could initiate unilateral action.
Most notable on this front may have been Trump’s declaration of a national emergency to build a border wall.
Such a declaration was out of line with how Congress viewed emergency powers, and even scored Trump a rebuke from a Republican Congress.
Trump’s successor — and Obama’s vice president — Joe Biden further escalated the use of unilateral authority.
His use of pen and phone includes actions he knows are likely unconstitutional and headed to the courts.
During COVID, Biden banned evictions from rental properties.
“The bulk of the constitutional scholars say it’s not likely to pass constitutional muster,” he admitted, yet “by the time it gets litigated, it will probably give [renters] some additional time.”
Biden also single-handed canceled more than $400 billion in student loans, conveniently timed in advance of the midterms to boost turnout of young voters.
The move, predictably, was struck down by the Supreme Court.
Biden also imposed child-care requirements for companies that get federal funding to via the CHIPS Act, a requirement found nowhere in the legislation.
The biggest problem: Presidential precedents matter.
If multiple presidents assert unilateral power to circumvent a closely divided Congress, then Americans will start to expect it.
And the more that presidents govern that way, the less we’ll have a system predicated on the separation of powers, eroding the very notion of limited government along with it.
Now, 10 years on, voters face a likely presidential choice between two presidents who’ve both exploited the pen-and-phone approach.
It may be too late to get someone with a different view for this cycle.
But it’s not too early to think about the damage of Obama’s pen-and-phone declaration and the importance of educating citizens — and potential 2028 presidential candidates — to think differently about the Framers’ concept of government and the necessary constitutional limits on a president.
Tevi Troy is a senior fellow at the Bipartisan Policy Center, a senior scholar at Yeshiva University’s Straus Center and a former senior White House aide and deputy secretary of Health and Human Services. He is the author of five books on the presidency, including the forthcoming “The Power and the Money: The Epic Clashes Between American Titans of Industry and Commanders in Chief.”