Over the last eight years, then‐President George W. Bush repeatedly insisted that he was the sole constitutional “decider,” free from congressional or judicial checks on his power.
He claimed the power to imprison American citizens as terrorist suspects for as long as he deemed necessary, tap Americans’ phones without a warrant, and, through the use of the State Secrets privilege — ‑a doctrine that shields information related to national security — prevent the courts from testing the legality of those propositions.
In the last months of his administration, Bush behaved like a Roman dictator for economic affairs, deciding which companies would live or die with the $700 billion in taxpayer funds Congress had authorized the executive branch to commit.
On the campaign trail in 2008, Barack Obama promised that he’d take a different approach to presidential power. Last week, our new president faced his first serious test of whether he meant what he said.
Last Monday, in a case alleging that the executive branch had broken the law by facilitating the torture of terrorist suspects, the Obama administration took the same position the Bush administration had; arguing that the State Secrets privilege didn’t merely prevent the disclosure of sensitive pieces of evidence. It allowed the federal government to suppress the entire lawsuit and send the litigants home.
Civil libertarians have long looked to Obama to dial back Bush’s extraordinary claims of executive power. But the notion that a man who ran as the reincarnation of JFK could be counted on to reduce the presidency’s power and importance in American life always ranked among the most audacious of hopes.
Granted, Obama’s early moves suggested a more restrained approach to presidential power. On his second day in office, he issued orders that scaled back executive branch secrecy and committed his administration to abide by the federal laws barring torture.
Call it the “soft bigotry of low expectations” if you want, but after eight years of the Cheney Doctrine, it was oddly reassuring to hear a president admit that he wasn’t above the law.
Moreover, Dawn Johnsen, Obama’s choice for head of the Office of Legal Counsel, the official charged with advising the president as to whether what he wants to do is legal, had a long paper trail arguing that the president’s constitutional powers were limited, and subject to congressional and judicial checks.
But Obama has always been a bundle of contradictions on the role of the presidency, simultaneously promising to roll back executive power and expand the bounties that the president can provide.
His administration has backed away from the war metaphor when it comes to the fight against terrorism, but the Obama team seems all too willing to employ the language of war and crisis with regard to economic affairs.
“The time for talk is over,” the president insisted two weeks ago, as he pushed for the passage of his stimulus bill, 2009’s equivalent of the Patriot Act: a preexisting wish list of Democratic priorities forced through amid cries of “emergency.” “You never want a serious crisis to go to waste,” chief of staff Rahm Emmanuel helpfully explained.
And though Obama has suggested that he doesn’t have the power to do whatever he wants in the area of national security, he is, apparently, perfectly comfortable with reshaping the commanding heights of finance by executive fiat.
In December, when the auto bailout bill failed to pass Congress, and Bush decided to lend $17 billion to GM and Chrysler anyway, Obama issued a press release supporting the president’s decision.
For a generation, the conservative movement has fought to expand presidential power. In the wake of Watergate, conservatives resisted congressional checks on executive authority, and after 9/11, they insisted that only presidential leadership could save us from the threats we faced.
Perhaps they believed that the domineering presidency they championed could be neatly confined to foreign affairs. But thanks in large part to their efforts, Obama has inherited the most powerful presidency in American history. That ought to give conservatives pause.