THE BLOG

Obama and the Power of the Pen

10/02/2014 09:19 GMT | Updated 11/04/2014 10:59 BST

There is a serious chill in air as Winter unrelentingly pounds our Nation's Capitol with storm after storm.

The Olympics in Sochi are well underway displaying all the grandeur the season has to offer.

And here in Washington, the relationship between President Obama and his not-so-loyal opposition in Congress could not be frostier.

It has only been a few weeks since both sides of the aisle met on Capitol Hill for a Joint Session of Congress to hear the President deliver his State of The Union address.

In keeping with tradition they did their best to honor a temporary cease fire.

However, it seems that at this time the President's gesture of peace and reconciliation may have been short lived and his patience may have run out.

In his address the President warned Congress that this year he would try to work with them but would not wait for them to take action.

Few expected him to resort to the use of sweeping Executive Orders quite so soon.

This week the President uses the power of his pen to eliminate discrimination between traditional and same sex marriages for all matters that will come before the Federal Courts.

This is a broad and sweeping step that could affect American lives in every state since each state has both State and Federal Court system.

What is perhaps most interesting here is that by this action and its consequences the President may not only be making a statement, he may also be ultimately setting up another challenge that the Supreme Court may have to decide.

President Obama can not make a permanent change to any law through the use of an Executive Order, however, he may be able to affect enforcement of those laws during the remainder of his term.

Last year the Supreme Court in two historic cases intentionally avoided a Constitutional decision on Same Sex Marriage - that would have effected all fifty states - but left the door wide open to revisit this issue at a later date.

Many believed that they were reluctant to do what the Supreme Court had done in earlier cases - pushing the law ahead of the popular sentiment of the people... "just too far too fast."

Some of the Supreme Court's most historic precedents have done just that - Brown v. Board of Education, Roe v. Wade... and the list goes on.

With this change of law in the Federal Court system, it is easy to see how a case might be decided differently despite the same set of facts and circumstances depending on which court is used to seek redress - the State Court or the Federal Court - in the very same state.

A number of circumstances determine which court a citizen may access to seek redress.

These circumstances may include diversity of citizenship, amount in controversy, the nature of the claim etc.

So it seems very likely that this change in the Federal Courts could give rise to a question of equal protection or another constitutional challenge that the Supreme Court might have to decide.

What is somewhat surprising here is that the Obama Administration chose this particular issue as the first use of the president's not so veiled threat that he made in his State of the Union address.

Although many states are adopting laws to treat traditional and same sex marriage equally, this change is clearly happening too fast for some more conservative areas of the US to absorb.

At this time 17 states and the District of Columbia have adopted laws giving same sex marriage equal standing with traditional marriage under the law.

Ten other states recognize civil unions and partnerships and 33 states limit marriage to opposite sex couples only.

This seems for some a politically perilous thing to do just as the Midterm Election cycle is getting underway.

Not only will this move antagonize President Obama's opponents in Congress and energize their base but it is also likely to concern some of his fellow Democrats who are up for re-election in more conservative states facing more severe challenges.

Taking such an aggressive move by means of an Executive Order is also likely to further complicate the President's relationship with Congress.

Speaker Boehner has already noted that his caucus no longer trusts the president to fully enforce the laws as passed by Congress - so immigration reform is probably dead for now and will have to wait until the Mid-Terms have passed.

President Obama is certainly not the first President to use the power of Executive Orders to get his way.

In 1863 Abraham Lincoln used his executive power to free the slaves with the Emancipation Proclamation.

It was originally signed in preliminary form as Lincoln's last attempt to bring the Civil War to a speedy close.

He later then pushed the Congress to make this change permanent.

In 1935 Franklin Roosevelt began most of the work of his New Deal with the Works Progress Administration - created by an Executive Order.

Using his Executive Order signing pen, FDR started putting the 25% of unemployed Americans back to work in the Civilian Conservation Corps - building over 600,000 miles of roads, 125,000 bridges, 8,000 parks and more.

Roosevelt used this power more often than any other president with 3,522 Executive Orders.

President Roosevelt is also known for one of the darkest uses of executive power - the Executive Order that called for the Japanese-American Internment.

This order authorized the detention of more than 110,000 Japanese-Americans during World War II.

In 1948, Harry Truman followed Lincoln's lead when he tried to work with Congress to desegregate the Armed Forces.

He underestimated the reaction of fellow Democrats from the South to this idea.

They seceded from the Democratic party and formed their own party, "The Dixiecrats".

Not missing a beat, in less than two weeks "Give 'em Hell Harry" desegregate the US Armed Forces by Executive Order.

So it seems clear there is precedent for presidents to take bold action when they believe that Congress simply fails to do so.

Presidents need to be careful how far they push their executive power.

There is always the risk of being viewed as an "Imperial President" - as was the case during the presidencies of Richard M. Nixon and "King Franklin I" as FDR was often referred to by his detractors.

Up till now, President Obama has used his executive power sparingly compared to his recent predecessors.

However, President Obama needs to chose these battles wisely and make sure he is on the right side of history when he acts alone.

As his predecessor Truman said, "The buck stops here", at the Oval Office desk, and so it will be for President Obama... and his legacy.