President Obama’s final State of the Union address on Tuesday may be most remarkable for what it doesn’t include—any major new policy initiatives. Presidents typically use the primetime national address as a platform to push their top priorities. Yet facing a mostly unfriendly Republican Congress and with public attention drifting to the race to replace him, Obama reportedly will use the speech instead as an opportunity to deliver a pep talk to a restive nation while also making the case for a Democratic successor.
But what of Obama’s vaunted executive authority? The president two years ago memorably threatened to use that power to keep ticking items off his to-do list despite Congressional intransigence. “I’ve got a pen and I’ve got a phone,” he said as he convened his first cabinet meeting of 2014. The declaration sent chills down the spines of corporate interests, who had bemoaned what they called a cascade of growth-choking regulations from the outset of Obama’s presidency.
Indeed, the Obama administration has issued more major regulations than either of his two immediate predecessors, Bill Clinton and George W. Bush. But when it comes to costly rules—which the White House defines as those carrying an annual economic impact of at least $100 million—Obama has operated within the same general neighborhood as his forebears. In 2014, for example, Obama made good on his pledge to pursue a pen-and-phone strategy by issuing 81 major regulations. Judging by the standard George W. Bush set, that represented a high volume of expensive rules; but in the final year of his presidency, Bush surpassed that mark, with 95 such rules. Here are the last 18 years of major rules:
That context may be small consolation to CEOs. In a Business Roundtable survey of top corporate chiefs from the end of last year, executives named regulation as the leading cost pressure on their businesses, ahead of labor and healthcare expenses. And it’s true that presidents usually step up their rule-making in the final year of their presidencies, as they lean harder on their executive authority to secure their legacies—a phenomenon borne out in the chart.
Yet for Obama, it will be tough to top 2010, the year that his administration began to implement two mammoth laws, the Affordable Care Act and the Dodd-Frank overhaul of financial regulations. Industry is already bracing for rules in the works aimed at boosting energy efficiency, reducing hazards like construction worker exposure to crystalline silica, and imposing new oversight on e-cigarettes. But the Obama administration faces a procedural check on cramming in too many new rules before packing up: Big regulations take time to vet and issue, and rushing them through raises the possibility they’ll simply be tossed out by the next Oval Office occupant, especially if that person is a Republican.
“To do it all in a few months is nearly impossible,” says Sam Batkins, the director of regulatory policy at the conservative American Action Forum. “The quicker you go and the more you sidetrack the procedural stuff, the more likely a court is to strike it down, and you’ve sort of wasted your time anyway.”