Following up on yesterday's post, WSJ: Meet the Law Professor Who’s Crashing the Inversion Party: New York Times, Behind Closed Doors, Obama Crafts Executive Actions:
When President Obama announced in June that he planned to bypass congressional gridlock and overhaul the nation’s immigration system on his own, he did so in a most public way: a speech in the White House Rose Garden.
Since then, the process of drafting what will likely be the only significant immigration changes of his presidency — and his most consequential use of executive power — has been conducted almost entirely behind closed doors, where lobbyists and interest groups invited to the White House are making their case out of public view.
Mr. Obama’s increasingly expansive appetite for the use of unilateral action on issues including immigration, tax policy and gay rights has emboldened activists and businesses to flock to the administration with their policy wish lists. It also has opened the president, already facing charges of executive overreach, to criticism that he is presiding over opaque policy-making, with the potential to reward political backers at the expense of other interests, including some on the losing side who are threatening to sue. ...
Consumer groups and organized labor want the Treasury Department to act on its own to limit financial incentives for companies that move overseas for tax breaks and stop so-called inversions. ... One group, Change to Win, a labor union-backed consumer advocacy organization that has pressed for congressional action to block corporate inversions, sought out a legal expert with Obama administration ties, Stephen E. Shay, to press its case.
Professor Shay, a top Treasury official during Obama’s first term who now teaches at Harvard Law School, was asked by the group to craft a legal justification for the administration to act without congressional approval. Professor Shay wrote an article in the trade journal Tax Notes in July, asserting that the president’s team had broad authority to do so.
“We asked his advice as to how to bring this forward to the administration,” said Nell Geiser, the associate director of retail initiatives at Change to Win, who said Professor Shay’s connections at the Treasury were vital. “He knew all the personalities and their dynamics.” Within days, Treasury Secretary Jacob J. Lew had announced that he had a “very long list” of ways to remove the economic incentive for inversions that would not require congressional action.
Update: Josh Blackman (South Texas), Executive Action “Behind Closed Doors”