In my last post, I quoted Andrew Sullivan’s provocative claim that “Obama has now taken [the imperial presidency] to a greater height than even Bush.” Could that claim be right? I assume that Sullivan means that not even Bush went to war without congressional authorization, whereas Obama has shown himself willing to do so, but what of signing statements, wiretapping, torture, secrecy, and the many other items in the long bill of particulars against Bush?
The answer is that from the standpoint of executive power Obama and Bush are not much different in the main, and it is hard to compare the details. Bush acted inconsistently with some statutes, and his underlings propounded aggressive theories of presidential power which the Obama administration has abandoned, but the practical significance of these differences is limited. Bush got the authorities he needed by demanding them from Congress, and Congress accommodated him with the Patriot Act, the Protect America Act, the Detainee Treatment Act, the Military Commissions Act, and two AUMFs. Thanks to Bush, Obama enjoys the legal authorities he needs to conduct the conflict with Al Qaida—and so, until our next crisis, we don’t know how Obama would have acted under similar circumstances. The Obama lawyers are certainly less inclined to bloviate than the Bush lawyers were but again where it counts—have Obama’s lawyers ever stopped him from going beyond the edge of legality?—we have little information and some reason for skepticism. Obama has vigorously expanded the drone program, taken the war into Pakistan, robustly defended his right to kill American citizens abroad, and opposed litigation that could expose secrets about the treatment of detainees. What is most interesting is that there is currently little comment on the left about Obama’s extensive uses of executive power. There are some outliers who were celebrated during the Bush administration for their attacks on the presidency and who have persisted in their views now that Obama is in office, but who today are ignored. The only public apology from the left for the Obama administration’s executive branch jurisprudence that I am familiar with is this one by David Cole, who starts off vigorously enough but ultimately falls back on legalisms and ends up undercutting his defense in the second half of the article, where he laments Obama’s dependence on secrecy, which raises the question how we know what to make of Obama’s actions as an executive if we don’t know what they are. And that was before the Libya intervention.
Sullivan exaggerates but gets at the essential truth, which is that the imperial presidency has been institutionalized, as Adrian Vermeule and I argue in The Executive Unbound. On Congress’ tomb should be inscribed this epitaph, courtesy of a democratic congressman: “They consulted the Arab League. They consulted the United Nations. They did not consult the United States Congress.” As for the Republicans, with some trivial exceptions, they range from complaining that Obama did not communicate with them (nothing about consultation let alone a vote of some sort) to complaining that he did not act aggressively enough!