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'So Sue Me': Why President Obama Is Embracing a Fight With Congress

President Barack Obama has aggressively touted his use of executive authority over the last several months as he aims to cement his legacy.
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President Barack Obama has aggressively touted his use of executive authority over the last several months as he aims to cement his legacy and push his policies now and even beyond his presidency.

The president's in-your-face attitude was punctuated Wednesday by his sarcastic challenge to Republicans: "So sue me."

That's just what House Republicans are trying to do. House Speaker John Boehner has threatened to file a lawsuit in protest of Obama’s executive actions on issues ranging from the environment to the minimum. But, far from deterring the White House, Boehner's challenge has emboldened the president to further push his plan to work around Congress for the remainder of his term.

“He’s planting seeds for some future that he knows that is extremely unlikely to happen in the next two years,” said Michael Tomasky, editor of Democracy, a policy journal that is influential in Democratic circles. “Even if he doesn’t get some of these things done, he’s putting them on the table as goals. That seems to be a very conscious effort.”

A reenergized Obama seemed defiant on Monday as he announced that the administration would consider using executive authority again to limit the number of undocumented people who are deported.

The main goal of the executive orders and actions is for the president to enact at least small parts of his major initiatives, like immigration reform, even if he can’t get support from Republicans in Congress on broader bills.

But the executive moves help Obama achieve two other aims as well. First, as White House officials privately acknowledge, the president is aware of the approaching end of his tenure and wants to make sure he addresses some issues he has long been passionate about before the end of his eight-year tenure. Accused by some African-Americans of not paying enough attention to high black unemployment during his first term, Obama signed an executive order earlier this year that mobilized his cabinet to look for policies that would address the chronic underachievement in education among young black and Latino males.

According to Democrats who have spoken with him, Obama also wants to use his speeches and executive moves to start a national dialogue on issues like expanding pre-kindergarten education, hoping those causes will be taken up by mayors, governors, businesses and even some of the 2016 presidential candidates if the president cannot achieve them himself.

The executive moves are, as the president has said, an acknowledgement Republicans in Congress are unlikely to work with him on major legislation before the 2014 elections. White House officials last year spoke optimistically about potentially winning control of the House in 2014 and trying to pass broad legislation on immigration and other issues during Obama’s last two years. Now they have a much more modest hope: holding onto the Senate so the administration can avoid having a second chamber of Congress eager to launch oversight hearings criticizing various administration policies.

But even on the campaign trail, Obama’s influence is limited. Many of the key Senate races this fall are in states like Kentucky and Louisiana, where the vast majority of voters disapprove of the president. Democratic congressional candidates are more likely to want to campaign with more popular national figures than Obama, such as Massachusetts Sen. Elizabeth Warren or either of the Clintons.

And the executive actions have heightened the deep tensions between Obama and the GOP. Republicans, divided on many other issues, have unified in saddling the president with terms like "imperial" and "lawless."

“If the current president can selectively enforce, change or create laws as he chooses with impunity, without the involvement of the Legislative Branch, his successors will be able to do the same,” Boehner wrote in a open letter to House Republicans detailing his plans to file a lawsuit against Obama. “This shifts the balance of power decisively and dangerously in favor of the president, giving the president king-like authority.”

Still, Obama is likely to continue down this path. Over the last six months, he has raised the minimum wage for people working on jobs funded by federal contracts, proposed limits for the emissions of nearly every power plant in the United States and banned federal contractors from not hiring workers because they are gay or transgender.

The administration argues the president’s advocacy on these issues also inspires action by others.

“Since he first called on Congress to raise the minimum wage six months ago, 13 states have raised theirs,” said Eric Schultz, a White House spokesman.

The emphasis on executive actions is a shift for Obama. In 2010, after Republicans won control of Congress, the Center for American Progress, a liberal think tank in Washington with close ties to the administration, wrote a detailed memo urging Obama to use executive orders on a wide range of issues.

The president enacted some of those ideas, but he has also spent much of his presidency on unsuccessful attempts to reach broad agreements with Republicans on immigration, deficit reduction and gun control.

But late last year, Obama hired as a top adviser John Podesta, a former chief of staff to President Clinton who had co-written the executive power memo in his role as president of CAP. Podesta was one of the key architects of the power plant emission rules.

And the administration has headed in a much more confrontational tone with the Republicans, led by the president himself.

“Three years, there were still some things moving,” said Neera Tanden, who replaced Podesta as head of CAP. “The rate of executive actions is a direct corollary with the level of dysfunction with the Congress.”