Obama Hits “Overload” on Executive Power

Remember that so‐​called “reset” button that then‐​Secretary of State Hillary Clinton gave her opposite Russian number back in 2009, to symbolize the Obama administration’s hopelessly naive fresh approach to relations with the Kremlin? You know, the one that actually said “overload” or “power surge,” depending on your preferred translation of peregruzka? Rather than a hilarious snafu, maybe the mistranslation was actually a Freudian slip, indicating the agreement between the presidents of two federal republics about the true scope of executive power. Not that President Obama has invaded a sovereign nation out of historical revanchism or thrown his political enemies in jail (or worse) — though the IRS scandal is the same kind of abuse, on a lesser degree — but the contempt that White House’s current occupant has shown to federalism, the separation of powers, and other aspects of the rule of law is breathtaking and unprecedented in the American context.


It’s thus no surprise that my most popular op‐​eds during my time at Cato have been the two examinations of Obama’s high rate of unanimous Supreme Court losses — one for the Wall Street Journal in 2012, the other for Bloomberg last year — plus the two “top 10 constitutional violations” pieces I’ve done, one for the Daily Caller in 2011, the other for Forbes last year.


Well, apparently I’ve been lazy. Comes now the junior senator from Texas, Ted Cruz, with a report called “The Obama Administration’s Abuse of Power” that lists no fewer than 76 charges. They’re divided into the following categories:

• Governing by Executive Fiat (9 items)
• National Security (5 items)
• Obamacare (10 items)
• Economy (6 items)
• Executive Nominees and Personnel (4 items)
• Free Speech and Privacy (7 items)
• Other Lawless Acts (9 items)
• Other Abuses of Power (26 items)

To be fair, not all of these are unconstitutional actions, or even illegal ones. (For example: “Increased the national debt more in one term than President Bush did in two terms.”) Others are a bit inside‐​baseball. (“Reneged on a campaign promise to wait five days before signing any non‐​emergency bill (at least 10 times during first 3 months in office),” citing my colleague Jim Harper writing at this blog.) A few bad ones can’t really be attributed to the president’s actions or policy preferences. (“As of 2011, 311,566 federal employees or retirees owed $3.5 billion in taxes.”)


Still, it’s quite an indictment, one that’s broad in scope, varied in types of abuses, and diligently footnoted.


Not surprisingly, the report raised the hackles of Washington Post columnist Dana Milbank, who found that the report “reveals less about the lawlessness of the accused than about the recklessness of the accuser.” Milbank called the 76‐​item list a “recitation of policy grievances … interspersed with some whoppers that the senator, a former Texas solicitor general, couldn’t have researched thoroughly.”


The biggest “whopper” — or at least the one worth mentioning first — is that the president “[b]acked the release of the Lockerbie bomber.” While Milbank is correct that the the article Cruz cites says that “the U.S. wanted Megrahi to remain imprisoned in view of the nature of the crime,” the thrust of the piece, titled “White House Backed Release of Lockerbie Bomber Abdel Baset al‐​Megrahi,” is that the administration worked to secure the bomber’s “compassionate release” back to Libya (see also here).


Milbank’s on surer footing in criticizing the allegation that Obama wrongly “extended federal marriage benefits by recognizing, under federal law, same‐​sex marriages . . . even if the couple is living in a state that doesn’t recognize same‐​sex marriage.” The practical effect of the Supreme Court’s ruling in United States v. Windsor — striking down the part of the Defense of Marriage Act regarding federal benefits — was precisely to require the federal government to treat people who were lawfully married the same regardless of sexual orientation. Yes, that presents cases of Schrodinger’s marriage for same‐​sex couples who, say, move to Texas after having gotten hitched in New York — married for federal but not state purposes — but such is the current lay of the legal land.


And Milbank is right that some of the items are there to score political points rather than as an example of a high crime or misdemenor. (“Canceled all White House tours after sequestration . . . even though President Obama had spent more than $1 million in tax money to golf with Tiger Woods.”) (Though I would argue that this item, like putting up barricades around national monuments during the sequester, is very much an abuse of political power, if not quite rising to the level of all the Obamacare and IRS stuff.)


Nevertheless, Milbank’s complaint — and this is common to all critics of critiques of Obama’s abuses, as I’ve witnessed first‐​hand in debating the subject around the country — boils down to the conclusion that what’s really at issue is a difference of policy preference.


Well, there is some truth to that: some people believe that the government’s range of policy options is limited by the Constitution’s structural limits on federal power, while others don’t. But you’d be hard‐​pressed to argue that any attack on Barack Obama’s abuse of executive power or expansion of federal power is mere political sour grapes. (And I should add that Cato calls out presidents of both parties when they stray.) As the Cruz report’s preamble states:

In the more than two centuries of our nation’s history, there is simply no precedent for the White House wantonly ignoring federal law and asking others to do the same.


For all those who are silent now: What would they think of a Republican president who announced that he was going to ignore the law, or unilaterally change the law? Imagine a future president setting aside environmental laws, or tax laws, or labor laws, or tort laws with which he or she disagreed.


That would be wrong — and it is the Obama precedent that is opening the door for future lawlessness. As Montesquieu knew, an imperial presidency threatens the liberty of every citizen. Because when a president can pick and choose which laws to follow and which to ignore, he is no longer a president.

For more on these sorts of issues, please join us for a policy forum May 21 called “Suspending the Law: The Obama Administration’s Approach to Extending Executive Power and Evading Judicial Review.”