Claims about Obama overreach may be resolved in court

President Barack Obama lamented the gridlock in Congress and vowed, "Wherever and whenever I can take steps without legislation to expand opportunity for more American families, that's what I'm going to do."

Republicans have accused Obama of overreaching his authority, and House Speaker John Boehner said he plans to file a federal lawsuit challenging the constitutionality of Obama's executive orders. Republican Rep. Bob Goodlatte claimed that the Supreme Court's "9-0 decision last week was the 13th time the Supreme Court has voted 9-0 that the president has exceeded his constitutional authority." The only decision among the 13 in which the High Court clearly found Obama "had exceeded his constitutional authority" was the June decision in NLRB v. Canning finding Obama overstepped his authority in making three appointments to the NLRB without Senate approval.

Adam Winkler, a professor of law at UCLA, said Goodlatte "overreaches a bit. It's clear the Obama administration, like the Bush administration before it, has been aggressively expanding presidential authority. This a worrisome trend - sufficiently so that exaggeration and misrepresentation aren't necessary." also consulted legal experts on Goodlatte's claim and found it to be false. Tom Goldstein, publisher of, called Goodlatte's figure "a concocted statistic." Goodlatte and Democratic Rep. Xavier Becerra disagreed over whether Obama has the authority to require federal contractors to pay their workers a minimum of $10.10 an hour.

While both pronounced their claims, the issue is a matter of legal debate. Obama argues that his authority stems from the Federal Property and Administrative Services Act of 1949, which was enacted to promote "economy" or "efficiency" in federal procurement. The statute grants the president the authority to "prescribe policies and directives that the president considers necessary to carry out" this charge. The Congressional Research Service issued a report "Presidential Authority to Impose Requirements on Federal Contractors" in 2011 and concluded that courts will generally uphold executive orders based on the FPASA - as this one on the minimum wage was - so long as there is an "attenuated link" between the requirements and economy and efficiency.

Kirsanow, a former member of the National Labor Relations Board, argued Obama's order is unconstitutional based on Supreme Court's decisions. Steven Schwinn, a professor at John Marshall Law School, wrote on his constitutional law blog that the action is probably a valid exercise of power that Congress granted the president, not a usurpation of power in violation of Article II limits.

The CRS wrote, "Presidents from Franklin D. Roosevelt through Barack Obama have issued orders that seek to leverage the government's procurement spending to promote socio-economic policies that some commentators would characterize as extraneous to contractors' provision of goods or services to the government." The report cautions, "this authority is not unlimited, and particular applications of presidential authority under FPASA have been found to be beyond what Congress contemplated when it granted the president authority to prescribe policies and directives that promote economy and efficiency in federal procurement."

Since no president before has required contractors to pay a rate higher than the minimum wage, the issue of whether Obama may do it may ultimately be decided in court. Those who make definitive statements about the president's authority are expressing legal opinions.

Chip Tuthill lives in Mancos. Websites used: