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Barack Obama and Executive Power:

One of the main flaws of the Bush Administration was its claim to virtually unlimited wartime executive power. To what extent will Barack Obama depart from Bush in that respect? Some, including co-blogger Eric Posner, believe that Obama will basically stick to the Bush position. Others, including many liberal Democrats, expect a radical departure from the last eight years.

I take an intermediate view. Obama is unlikely to resuscitate the more extreme Bush positions. But neither is he likely to depart from them as much as some of his most fervent supporters want.

On the first point, it's important to remember that most of the Bush Administration's really extreme assertions of untrammeled executive power have already been repudiated in a series of Supreme Court decisions (Hamdi, Hamdan, Boumediene), and in some cases by the Bush Justice Department itself (as in the case of Jack Goldsmith's retraction of the infamous "torture memo"). It seems to me highly unlikely that Obama will try to revive Bush Administration doctrines that even Bush himself was forced to retreat from. Moreover, he will have little practical need to do so. For the foreseeable future, he will have a Democratic Congress eager to give him a free hand. Thus, he won't need to cut them out of the policy loop in order to pursue the policies he wants; after all, his preferences are likely similar to theirs. One of the striking failings of the Bush Administration was its unwillingness to share power with Congress even when Congress was controlled by its political allies. As Goldsmith argued in his book The Terror Presidency, this stance undermined political support for Bush's policies and led to a series of court defeats that ultimately constricted executive power more than a more cooperative approach to Congress might have. Obama is too smart a politician not to draw the appropriate lesson from these debacles.

On the other hand, I think that Obama is unlikely to restrict wartime executive power as much as some left-liberals and libertarians would want. Like most presidents, Obama probably won't easily accept restrictions on powers that he himself is going to wield. Moreover, past experience shows that liberal Democrats are far from unwilling to act on broad theories of executive power. Few if any Bush claims of executive power went as far as Bill Clinton's argument that he could wage war in Kosovo without any kind of congressional authorization. Kosovo was the only war in recent American history that was begun without majority support in Congress.

Another area where Obama is likely to take a broad view of executive authority is in responding to the economic crisis. Here, he might be tempted to exclude Congress to some extent in order to act swiftly and to minimize interest group pressures (which would not necessarily preclude the executive from using "emergency" measures to reward its own favored interest groups). I predict that left-liberals won't object to sweeping executive authority in the economic field as much as they do on national security, though I hope some of them will prove me wrong. Conservatives may not like it, but those who defended the Bush Administration against charges of overreaching might find it difficult to object without being inconsistent. I, on the other hand, will be more than happy to criticize excessive Obama claims of executive authority when I think necessary, because I was critical of Bush as well (e.g. here and here). I hope that Obama won't give me too much occasion to do so, but I'm not especially optimistic on that score.

Related Posts (on one page):

  1. Barack Obama and Executive Power:
  2. Will the Obama administration repudiate Bush-era legal opinions?
Math_Mage (mail) (www):
Will Obama radically retract executive power? All signs point to no.
11.11.2008 5:22pm
Randy R. (mail):
I doubt that Obama will retract all the executive powers that Bush took for himself. However, I believe that he will be more transparent in his use of power, which is a step in the right direction.

Anyone who supported Bush or the Republicans in Congress over the past eight years really has no basis for complaint if Obama doesn't retract these powers, however. And by support I mean donate money or vote. Your suppport gave Bush and his buddies the green light to take this power, and the Republican congress was happy to hand it over to him. Thank goodness the judiciary limited the worst of it.
11.11.2008 5:25pm
MartyA:
Obama will make Bush's use of executive power seem very reasonable. It will take 3 to 6 months for Obama's laziness, ineptitude, lack of intelligence and lack of stamina to become really, really obvious. Those around him will precipitate (or fake - Emanuel would do it in a heartbeat) an attack. The war time powers that Obama will assume to cover what a poor choice he was will make even Abe Lincoln seem like an amateur. There will be censorship, reeducation camps, property seizures, arrests/detention for hate speech/crimes, the suspension of most individual civil/criminal rights, universal wiretapping, seizure of weapons belonging to those who commit hate crimes/speech and sequestration (Gitmo?) of the lawyers who protest.
11.11.2008 5:31pm
Sarcastro (www):
What MartyA said, only sarcastic.
11.11.2008 5:46pm
Perseus (mail):
Conservatives may not like it, but those who defended the Bush Administration against charges of overreaching might find it difficult to object without being inconsistent.

I think that a tolerable distinction can be made between a broad view of executive power in the area of national defense versus the economy (though an expansive view with respect to the former will certainly make it more difficult to criticize President Obama for using his powers to advance some hare-brained policy like Clinton's in Haiti). I really don't see a Democratic Congress denying President Obama any grant of authority that he believes is necessary to carry out his economic plans.
11.11.2008 5:50pm
abh (mail) (www):
I noted this over on a new website, wondering if the folks that screamed about Bush's abuse of power will make the same noise when Obama starts working on his proposed agenda.
11.11.2008 5:52pm
PersonFromPorlock:
Randy R.:

Anyone who supported Bush or the Republicans in Congress over the past eight years really has no basis for complaint if Obama doesn't retract these powers, however.

I trust you're not proposing Mr. Bush or the late Republican Congress as a model for the Democrats!

Actually, Bush's position on executive power is hard to refute if you presume that the Presidency and the CinC-ship are the same thing and that we're at war. Military commanders in wartime do have near-dictatorial powers, even under American military law, and Mr. Bush has proceeded on that basis.

My point all along has been that CinC is a separate office from that of President, but one whose only qualification is that the CinC also be President; and that its powers don't transfer to the Presidency. In fact, it puts the person-who-is-also-President under the Congress's Article I power to regulate the military when he dons the Brass Hat.

But what do I know? IANAL. Indeed, mea maxima NAL!
11.11.2008 5:53pm
PersonFromPorlock:

Conservatives may not like it, but those who defended the Bush Administration against charges of overreaching might find it difficult to object without being inconsistent.

Wot, you don't believe in giving a hard-working politician a Mulligan? That's unAmerican, that is!
11.11.2008 5:59pm
LM (mail):

I take an intermediate view. Obama is unlikely to resuscitate the more extreme Bush positions. But neither is he likely to depart from them as much as some of his most fervent supporters want.

This assumes facts not in evidence. Are those who want the most aggressive overhaul of Bush's policies among Obama's "most fervent supporters?" You may be technically correct insofar as "some" probably are. But unless that position is overrepresented among Obama's most fervent supporters, your referring to them as such is misleading.

FWIW, my sense is that advocates of the most aggressive changes were not generally among the core Obama supporters in any meaningful sense. Some did support him enthusiastically despite their low expectation that he shared the extent of their views; some supported him grudgingly, like many conservatives supported John McCain; and only a relative handful supported Obama in the (ill-informed) expectation that he'd implement policies nearly as far to the left in any respect as was (and continues to be) claimed by many Republicans.
11.11.2008 6:06pm
tvk:
Ilya,

I would join your prediction, but I disagree with your analysis on a few points.

1. Yes, the Bush administration has received some pushback--but I still see the presidency at its most powerful since before Watergate. So it seems that by staking really extreme claims, the Bush administration got most of what it wanted without making it seem so extreme after all. This I believe is called the "anchor" effect. We can speculate on whether Bush could have got more by cooperating with Congress in the first place, but I doubt it.

2. I doubt either liberals or conservatives will find an about-face on the Obama administration claiming broad powers to deal with the financial crisis even remotely difficult to reconcile with their prior views. Conservatives will say "the Commander-in-Chief clause gives the President vast powers to protect national security, but has nothing to do with the financial crisis"; while liberals will say "the Bill of Rights protects us against government security measures, but has nothing to do with the financial crisis."
11.11.2008 6:10pm
Dreadnaught (www):
"It is not an abuse of power when we use it for good."

- The Left
11.11.2008 6:18pm
Sarcastro (www):
Dreadnaught

Because the left is behind this one hundred percent! I just feel it in my bones!
11.11.2008 6:21pm
devil's advocate (mail):

Jack Goldsmith's retraction of the infamous "torture memo"


Point of Order

I don't think it has ever been conceded here that they were infamous. as a matter of fact that is where my screen name came from

brian
11.11.2008 6:26pm
smitty1e:
Likelihood of retraction: somewhere between 0 and 0.
If there is anything the Fed does not know, it lacks knowledge of giving up power.
11.11.2008 6:32pm
FWB (mail):


The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times [p*121] and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false, for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its just authority.

Ex parte Milligan, 71 U.S. 2 (1866)




BTW, IF Article II grants unitary executive power, rather than the simple 10 or so powers explicitly listed, then Article III grants unitary judicial power through the same words. But then Amar thinks we can have it both ways, broad for the Pres and limited for the Judges. I love how leftists and rightists twist and turn to usurp power. Bush usurped but he was following in the footsteps of the great men of the 20th century, FDR, Wilson, Truman, Johnson, etc. (_The_Cult_of_the_Presidency, Gene Healy).

Dominus providebit!
11.11.2008 6:34pm
Henri Le Compte (mail):
See, I was hoping that Obama was right now-- even as we speak-- scotch taping together the pieces of the Constitution that Bush had shredded.

I hope I'm not wrong about that because I'll be very disappointed!
11.11.2008 6:39pm
LM (mail):
devil's advocate:

I don't think it has ever been conceded here that they were infamous.

... the operative word, I believe, being "here."
11.11.2008 6:40pm
guest guy (mail):
The torture memo was rescinded and replaced by the Levin memo -- which many believe didn't change the operative definition one whit. The new memo has a controversial footnote that can be interpreted as leaving the line where Levin found it.
11.11.2008 7:24pm
Brett:
Anyone who supported Bush or the Republicans in Congress over the past eight years really has no basis for complaint if Obama doesn't retract these powers, however.


Complaint? No.

But I sure am going to take pleasure in pointing out the hypocrisy of Democrats rushing to defend Obama's exercise of powers they crucified Bush for.
11.11.2008 7:25pm
Dr. T (mail) (www):
The bottom line is that Obama will have as much or more presidential power than Bush, but he'll just have to tell Congress he's using it. I'm not relieved.
11.11.2008 7:42pm
titus32:
Are you saying your view is intermediate to Posner's because you don't believe Obama's administration will run afoul of the Supreme Court decisions? Putting aside whether this is an interesting comment, does Posner really believe otherwise?
11.11.2008 7:46pm
Splunge:
I predict that left-liberals won't object to sweeping executive authority in the economic field as much as they do on national security, though I hope some of them will prove me wrong. Conservatives may not like it, but those who defended the Bush Administration against charges of overreaching might find it difficult to object without being inconsistent.

Oh, right, because there's no distinction in, say, the Constitution between executive power in the service of national defense and executive power in the service of the national economy.

It says right there in Article II that in addition to his duties as Commander in Chief the President is empowered to set prices and wages, control the money supply, set national policy on what fraction of energy is generated by burning imported oil, and generally reallocate wealth from certain citizens according to their abilities to other citizens according to their needs.

Er...doesn't it? You're not telling me the Founders took care to most restrict the powers of the President inside the country, over his fellow citizens? Why would they do such a silly thing?
11.11.2008 8:34pm
wm13:
"One of the striking failings of the Bush Administration was its unwillingness to share power with Congress even when Congress was controlled by its political allies. As Goldsmith argued in his book The Terror Presidency, this stance undermined political support for Bush's policies and led to a series of court defeats that ultimately constricted executive power more than a more cooperative approach to Congress might have."

I know Goldsmith makes this argument, and maybe it seemed reasonable at the time he published his book, but subsequent history really doesn't support this claim. The federal courts have essentially given no weight to congressional authorizations or approvals when evaluating challenged government actions in the GWOT.
11.11.2008 8:39pm
RPT (mail):
The election is only a week only and Marty A is pining for a reprise of the Bush years.
11.11.2008 9:56pm
RPT (mail):
Marty A, don't miss the lame duck's authorization for all local police authorities to spy on all citizens, whether or not a crime is suspected.
11.11.2008 11:19pm
Kazinski:
There is a clear distinction between the President exercising power against external foes and their agents, and the President abrogating power to order economic issues, as was once said:

I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward not because of rebellion, but because of a lawful economic struggle between industry and labor, it should have no such indulgence. His command power is not such an absolute as might be implied from that office in a militaristic system, but is subject to limitations consistent with a constitutional Republic whose law and policymaking branch is a representative Congress.
11.12.2008 2:00am
corneille1640 (mail):

"It is not an abuse of power when we use it for good."

- The Left

"It is not an abuse of power when we use it for good."

- The Right
11.12.2008 7:13am
Horatio (mail):
"It is not an abuse of power when we use it for good."

- The Left

"It is not an abuse of power when we use it for good."

- The Right


"It's not an abuse of power when we use it - regardless of the reason - only when the other guys use it"

--The Left and The Right
11.12.2008 8:23am
Al Maviva:
It's interesting seeing how the focus is on the defense and intelligence issues, but the vast majority of congressional overreach - micromanaging through staff browbeating of lower level political appointees and steering of major grant and contract activities - is completely ignored. I guess the high profile stuff is what gets the headlines.

Fearless prediction: Obama will mostly hold the line on the high profile issues, and knowing damn well how Congress manages to be intrusive and meddlesome without actually providing useful oversight, will drive back Congressional influence in the agencies. This development will occur completely under the radar.
11.12.2008 8:39am
Sarcastro (www):
[Hate to disagree with the clever parallelism above, but I don't see anyone on the left saying it's cool that Obama's doing this. Yet.

Cynics, you'll have to wait at least a few more months before you claim both sides are equally hypocritical on this issue.]
11.12.2008 9:04am
Uh_Clem (mail):
It is rare for a person in power to voluntarily relinquish them. That's why it was so important to prevent the accumulation of Presidential power in the first place.

Will Obama voluntarily cede presidential powers that accrued to the office in the Bush administration? Some of it, perhaps, but a wholesale repudiation of it is unlikely.

Will an Obama administration be as nakedly aggressive about aggregating as much executive power as possible as was the Bush administration? Very highly unlikely.

As far as practical predictions go, here's mine:

No signing statements. (at least as long as the Dems control congress)

Less or no invocation of "executive privilige"

More respect for the bill of rights, especially first and fourth ammendments.

More independence for the Justice Department and respect for their professionalism. i.e. not treating it as merely an extension of the political campaign.

A clear separation of policy vs politics. Expect to see more wonks and fewer salesmen deciding policy.

K-Street? Who knows. The Dems may decide that they own it now, just like the GOP owned it before. Expect big changes with career Republican lobbyists out on the street. Whether the dems go for ideological purity ala Rove's K-street project remains to be seen.
11.12.2008 10:00am
Arkady:

Conservatives may not like it, but those who defended the Bush Administration against charges of overreaching might find it difficult to object without being inconsistent.


But, didn't Orin just conduct an extensive discussion of the Exchanging Arguments Dosado we're all about to witness?
11.12.2008 10:03am
Oren:


Conservatives may not like it, but those who defended the Bush Administration against charges of overreaching might find it difficult to object without being inconsistent.

And liberals that defend Obama's expansive use of executive power will be what, chopped liver?
11.12.2008 10:34am
rarango (mail):
I find myself in agreement with Sarcastro: lets wait to see what happens before we get our panties in a twist here.

With respect to Mr. Obama, I suspect that real world of the presidency will look considerably different from inside the oval office than the world from the hustings.
11.12.2008 11:48am
FWB (mail):

One of the main flaws of the Bush Administration was its claim to virtually unlimited wartime executive power.


But isn't this claim to power part and parcel of the bogus "unitary executive theory" (UET) as espoused by Amar of Yale and others? And wasn't adherence to UET something that Wilson, FDR, Truman, and others had in common with Dubya?

What the heck! If we don't draw the line on reading between the lines of the Constitution, we will have a moot document. Oh, wait. We passed that point a long time ago. And the People in their ignorance (brought about by the lies taught in the government school system) sing blissfully along.

Dominus providebit!
11.12.2008 11:48am
Oren:

But isn't this claim to power part and parcel of the bogus "unitary executive theory" (UET) as espoused by Amar of Yale and others? And wasn't adherence to UET something that Wilson, FDR, Truman, and others had in common with Dubya?

For the millionth time on this blog: NO NO NO!

UET refers to the distribution of power within the executive branch. Proponents would argue that Congress has no authority to create executive branch offices with independence from the POTUS (e.g. Ken Star).

Expansive/Limited executive power refers to the extent of the POTUS authority to act without/in defiance of Congress.

One can believe in an expansive unitary executive (Bush).
One can also believe in a limited unitary executive (Kerr, I think).
One can also believe in a expansive but non-unitary executive -- one in which the executive branch has significant authority but whose members cannot be removed/directed by the POTUS at will.
Finally, one could believe in a limited and non-unitary executive in which the EB cannot do much without Congress nor can the President dismiss EB-members arbitrarily.

All four are internally consistent theories.
11.12.2008 1:01pm
wfjag:

RPT:
The election is only a week only and Marty A is pining for a reprise of the Bush years.

Early indications are that Marty will get his wish. See the Louisville Examiner article "Obama's chief of staff choice favors compulsory universal service" (linked at Overlawyered.com under Olson's article "Rahm Emanuel and compulsory universal service". The rest of the article and the articles it links to are well worth reading, too).
11.12.2008 1:17pm
Sigivald (mail):
What Perseus said - defense is an enumerated power of the State, and philosophically one of its core missions (indeed, if we want to go to libertarian theory, the only core mission it has that isn't law and contract enforcement).

Fixing the economy is another matter. Even Congress only has the power to "regulate Commerce [...] among the several States", and unlike matters military, there's no obvious connection to executive initiative there.

The President is Commander in Chief of the armed forces, and Congress lacks power to tell him how to wage war.

In matters economic, however, the President is not Commander in any way, and is tasked with the more ordinary executive branch job of Doing What Congress Said.

In that fashion, a completely consistent and principled case can be made for defending executive power in the context of President Bush's wartime agenda, while opposing it in non-wartime contexts, regardless of the President involved.

(Which turns out to be much like the view I actually hold, in this case, though I'm not naive enough to imagine that the Constitution actually matters to the Government or has, indeed, these past hundred years or so.

Nobody in Washington gives a fig for enumerated powers, except rarely someone on the Supreme Court.)
11.12.2008 1:20pm
Smokey:
A wonderful perspective on Obama from across the pond.
11.12.2008 1:35pm
Cornellian (mail):
Nobody in Washington gives a fig for enumerated powers, except rarely someone on the Supreme Court

And when Clarence Thomas leaves that number will officially drop to zero.
11.12.2008 2:23pm
davod (mail):
"Hamdi, Hamdan, Boumediene"

Did these rulings stop the Executive from doing anything other presidents have done?
11.12.2008 5:33pm
Oren:

The President is Commander in Chief of the armed forces, and Congress lacks power to tell him how to wage war.

Except for that pesky provision empowering Congress to make rules governing those armed forces.

We can write it out of the Constitution, if you like.
11.12.2008 7:56pm
wyswyg:

As far as practical predictions go, here's mine:


More respect for the bill of rights, especially first and fourth ammendments.



From Obama and the Democratic Congress? Squelching free speech is right at the top of their list of things to do. Hell, they were doing it even before the election.
11.12.2008 8:30pm
wyswyg:
It's news to me that FDR, Wilson, and Truman did not subscribe to the idea of a "expansive unitary executive". Those were three of the most imperial of our presidents.
11.12.2008 8:36pm
Oren:


And when Clarence Thomas leaves that number will officially drop to zero.

Enumerated powers? From a Justice that signed on to the Federal Partial Birth Abortion Ban?
11.12.2008 9:38pm
John Imrie (mail) (www):
It seems to me it is a lot easier to grow power than it is to shrink it. I think if we want to reduce federal power, State governments have to step up to the plate and start filling in power vacuums, basically beating the feds to the punch
11.13.2008 7:09pm
ian (mail):
I doubt he will relinquish much.
For gosh sakes, open your eyes and see who this guy is.
Humble, he ain't. He cloaks it well, but every once in a while, we get a glimpse of the arrogance and ruthlessness lurking below the surface.
11.14.2008 12:00am