Obama’s Reversals on Executive Power

New York Times columnist Ross Douthat has an interesting column describing some of President Obama’s evolving positions on executive power. He now engages in many of the same practices that he and numerous other liberal Democrats denounced as unconstitutional in the days of the Bush Administration:

When George W. Bush was president of the United States, it was an article of faith among liberals that many of his policies were not just misguided but unconstitutional as well….

Obama campaigned as a consistent critic of the Bush administration’s understanding of executive power — and a critic with a background in constitutional law, no less. But apart from his disavowal of waterboarding (an interrogation practice the Bush White House had already abandoned), almost the entire Bush-era wartime architecture has endured: rendition is still with us, the Guantánamo detention center is still open, drone strikes have escalated dramatically, and the Obama White House has claimed the right — and, in the case of Anwar al-Awlaki, followed through on it — to assassinate American citizens without trial.

These moves have met some principled opposition from the left. But the president’s liberal critics are usually academics, journalists and (occasionally) cable-TV hosts, with no real mass constituency behind them.

The majority of Democrats, polls suggest, have followed roughly the same path as the former Yale Law School dean Harold Koh, a staunch critic of Bush’s wartime policies who now serves as a legal adviser to the State Department, supplying constitutional justifications for Obama’s drone campaigns. What was outrageous under a Republican has become executive branch business-as-usual under a Democrat.

Douthat does not mention what was perhaps Obama’s biggest reversal on executive power. The man who in 2007 wrote that “[t]he President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation,” last year waged a war against Libya without any congressional authorization. Even Bush never went that far.

Like Douthat, I don’t believe that all of Obama’s reversals were for the worse. In some of these cases, I think the president’s new position is more correct than his old one. That said, it is unfortunate that Obama has adopted such an extraordinarily broad view of executive power, and that Democratic partisans have largely accepted it. In fairness, their unprincipled behavior is little different from that of many Republicans when the GOP controls the White House. But that hardly justifies it.

For those who want to argue that I myself only turned against a broad view of executive power when Obama got into the White House, I refer you to my January 2007 Federalist Society debate on wartime executive power with John Yoo and others, and this post.

UPDATE: I have revised the last paragraph of this post for stylistic reasons.