Congress has been ceding power to the executive branch for more than two decades. In the 2008 presidential election, President George W. Bush was often criticized by then-candidate Barack Obama for his executive overreaches. Candidate Obama even promised to “reverse” the Bush Administration’s expansion of executive authority in 2007. However, no president in modern history has done more to circumvent Congress and rewrite legislation than President Obama has.
While the Obama Administration’s rewriting of the Affordable Care Act (ACA) to delay timeframes may immediately come to mind, perhaps the most blatant example of executive branch overreach is the Justice Department’s decision to rewrite more than 50 years of consistent interpretation of the Wire Act of 1961 to allow revenue-seeking state governments to go into the online gambling business.
Perhaps most disturbingly, the Justice Department’s decision is clearly a result of back-room deals, coming without a single Congressional hearing or public discussion on the topic. And, to compound matters, the decision was released on Christmas Eve 2011 – an extreme version of the infamous Friday afternoon news dump.
Since 1961, both Democratic and Republican administrations interpreted the law to prevent states from instituting online lotteries. However, facing pressure from the President’s home state of Illinois and the Vice President’s home state of Delaware, the Attorney General said states can not only institute online lotteries, but also other online gaming, including poker, slots and blackjack.
In addition to the Wire Act of 1951, the Unlawful Internet Gaming Act of 2006 (UIGEA) makes it illegal to transmit or accept Internet payments in connection with gambling. Through these two pieces of legislation, Congress clearly asserted itself. Yet, the Administration used an executive directive to reverse the legislation's clear intent, sending big-spending states facing budget deficits into a furor over which one could be the first to capitalize.
Unsurprisingly, it was the President’s home state of Illinois that struck first, followed by an expansion of online gaming in other cash-strapped states including Delaware and New York. Until recently, Congress was largely silent on the issue.