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Environment: The president did not immediately get the cap-and-trade carbon program he wanted. But he is using the powers of the stimulus package and bailout legislation to establish that he can push out corporate execs and take over any company he wants in other fields, so why not in this one, too? His executive branch seems to believe that it can legitimately claim whatever power it says it needs to achieve a goal it can halfway connect to a legitimate congressional mandate.
It is quite possible that Obama’s EPA will claim authority for sweeping action under the Clean Air Act. The president of Clean Air Watch, Frank O’Donnell, told Rolling Stone that an EPA ruling that global warming is a public health danger “gives Obama added leverage in going to Congress. … He can say, ‘I’ve got this authority in my back pocket. If you torpedo cap-and-trade, I’ll have no choice but to deal with this administratively.’”
Foreign policy: Obama claims to be on schedule to wind down our involvement in Iraq. His rosy projections of declining deficits in the out-years—the ones he doesn’t have to worry about now as he tries to keep the plates of an overextended economy spinning for one more month—depend on it. But if a rising insurgency ramps up the killings of U.S. troops or other Iraqis in the last months before the supposed pullout at the end of 2011, who believes that Obama will make good on his pledge?
He has no intention of ending the Bush-era policy of imperial overreach. He’s just shifting the theater in which we act out this timeless drama of collapse, with 21,000 more troops promised to Afghanistan for the potentially eternal mission of ending the Taliban insurgency there.
This survey only scratches the surface of bad actions and ominous portents for President Obama’s exercise of power. His administration is as cynical about federalism as Bush’s, if not more so.
Indeed, he has such a yen for creating independent centers of executive power in the form of policy “czars” that even Democratic Sen. Robert Byrd, no advocate of restrained government, recently complained that Obama is threatening “the constitutional system of checks and balances” by giving too much independent authority to the White House outside of Senate-approved department heads. But many other Democrats in Congress are looking to extend presidential reach still further, plumping to give Obama power over the entire food production and distribution system (the proposed “Food Safety Modernization Act”) and to shut down the Internet in a “cybersecurity emergency” (the proposed “Cybersecurity Act of 2009”).
Given the realities of Obama’s practice of presidential power, his official vision seems less important. His team hasn’t yet spelled out anything as sinister as the loopholes John Yoo devised for Bush from his Office of Legal Counsel, if only because Obama’s pick for OLC, Dawn Johnsen, has had her appointment held up in the Senate, largely over her abortion views. From her record, it’s unlikely that she’ll give her boss a formalized framework of power. That’s not how Obama likes to sell himself. But just because Johnson doesn’t deliver some tortuous explanation for why the president can do whatever he wants doesn’t mean that her boss will be any more constrained than his predecessor.
For example, the Obama Justice Department’s filings in the habeas hearings before U.S. District Court Judge John Bates in the legal challenge by four Bagram detainees no longer relies, as Bush did, on bald declarations of inherent presidential power. But Obama’s DOJ does not therefore conclude that the president does not have the power to keep “enemy combatants” locked up indefinitely without habeas rights, even as Obama moves to shut down the public-relations nightmare of Guantanamo and abandon the term “enemy combatants.”
The power Obama’s Justice Department claims might not be “inherent” any longer. But as explained by Duke Law School’s Christopher Schroeder on the website Executive Watch, Obama’s team still “argues there is ample authority to detain in the combination of the AUMF [Authorization for Use of Military Force] itself, the president’s conceded central role in executing the country’s war powers, and international law.” Those poor bastards languishing at Bagram and other mystery detention centers aren’t likely to be cheered by this supposed change in theories of executive power.
U.S. presidents have been acting outside the explicit bounds of their constitutional mandates from the Adams and Jefferson eras—Alien and Sedition Acts, Louisiana Purchase—through Lincoln, Wilson, Roosevelt, and Johnson to Bush and now Obama. The story of the decay and destruction of constitutional limits on power is as old as the Republic itself. And expansions of executive power—see Richard Nixon with his plethora of new regulatory agencies and wage and price controls—need not be combined with an explicitly developed theory that supports and encourages government metastasis.
Executive overstretch has dominated American government for so long that we usually only hear effective complaints from those fighting to oust the incumbents steamrolling our liberties at any given moment. That’s why candidate Obama was so sharp about criticizing Bush’s extraconstitutional power claims and was able to find the one war he could be unequivocally against: the one he could blame on his political opponents. Now he perpetuates the same policies, albeit under different names and with different excuses (secrecy and “enemy combatants”) or with promises to stop them eventually (Iraq).
As predictable as out-party opposition is in-party realization that, as Obama’s right-hand man Rahm Emanuel openly put it, there’s no sense in letting a crisis go to waste. After all, the costs of classic, FDR-style “bold, persistent experimentation” are low in such crises. American presidential powerhouses have had various rationales for their abuses—from war for Lincoln, Wilson, and Bush to economic crisis for Roosevelt to playing on a wealthy society’s sense of fairness and guilt for Johnson.
Obama’s specialty is shaping up to be particularly dangerous because it’s hard to dispute given the average American’s sensibilities. No call for liberty and constitutional principle seems convincing when Obama is arguing that those relying on government giveaways should have to follow government-set rules. That is, once you’ve allowed them to go ahead with the handouts, the political game is almost over. Under the guise of “managing the taxpayers’ money,” Obama and his crew are rewriting mortgages, deciding executive compensation, tossing out CEO’s. And note carefully that his plans for where taxpayers’ money should go continue to swell, from healthcare to the environment to energy policy to expanded “national service” programs. When taxpayers’ money is everywhere—and Obama is doing his best to make sure it is—then Obama’s control is everywhere.
The Octo-potus is claiming his space and flexing his grip. As far as he’s concerned, it’s Barack Obama’s country. We’re just living in it.
Senior Editor Brian Doherty is author of
This is Burning Man (BenBella),
Radicals for Capitalism (PublicAffairs) and
Gun Control on Trial (Cato Institute). This article
appeared in the American