Obama's Top Four Power Grabs
The president stretches executive power to expand the warfare state and the regulatory state.
Candidates never keep their promises once in office. But even by the unlovely standards of his political peers, President Obama has pulled a rather impressive switcheroo from the anti-Bush to Bush-plus. He ran on a platform to undo President George W. Bush's legacy and restore government accountability, even signing the pledge from the Reason Foundation (where I work) to "fully and robustly" work toward "open, transparent, and accountable government principles."
Instead, he has expanded executive power to czar-like proportions on fronts where even Bush feared to tread. Progressive crazies such as The New York Times' columnist Paul Krugman are chiding Obama for being squeamish about using his executive authority to raise the debt ceiling, choosing, instead, to negotiate cuts in government spending—a crime and an abomination in their book—with a Tea Party-cowed GOP. But the 14th Amendment gives Congress, not the president, the authority on debt-related matters. Doing an end run around the amendment would have precipitated a constitutional crisis that the Obama presidency might well have been unable to weather.
But the fact of the matter is that when Obama can get away with deploying his executive power to accomplish his agenda, he does so without pause or hesitation, constitutional niceties such as checks-and-balances be damned. His many power grabs are worthy of a book. But below are four of the truly unprecedented ones, two that expand the war state and two that expand the regulatory state.
1. War-making powers. During the campaign, Obama famously declared that when it came to bombing Iran's nuclear facilities: "The president does not have the 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."
But not only did he not get prior congressional approval before bombing Libya, which poses no threat, he refused to get approval even 90 days after the fact as required by the War Powers Resolution Act. Why? Because he insists that unless troops are committed, we are not engaged in a war, only "kinetic military action."
By that logic, he could drop a nuclear bomb on any country using drones without consulting anyone and there would be nothing illegal about it. Even Bush obtained congressional authorization before attacking Afghanistan and Iraq.
2. Civil liberties. During a 2005 speech, Obama rightly condemned the "false choice" between liberty and security posed by the Bush war on terror. So what does he do after getting elected? Not only does he not return the civil liberties that Bush took away, he confiscates more.
He has not: shut down Guantanamo; abandoned the use of military tribunals to try enemy combatants; given up rendition; or phased out the worst abuses of the Patriot Act.
But he has prosecuted almost twice as many leakers as all previous presidents put together to protect government secrets. His most original and outrageous assault on civil liberties, however, is his assertion that he has the right to summarily execute, without due process or judicial oversight, suspected American terrorists on foreign soil such as Anwar al-Awlaki, the Muslim cleric hiding in Yemen who allegedly inspired the Fort Hood shooter. Awlaki might be a bad man, but killing an American citizen anywhere—here or abroad—without sharing any evidence with courts or Congress goes further than Bush ever went.
3. Legislating through bureaucrats. If this assault on civil liberties is chilling, so is the manner in which Obama and his congressional minions are colluding to hand over control of the economy to unelected bureaucrats.
Consider the Independent Payment Advisory Board that Obamacare created. Its 15-member board, appointed by the president, has virtual carte blanche to cut Medicare spending by mandating "evidence-based medicine" (code for rationing) or slashing physician payments. Its "recommendations" will have the force of law unless Congress passes—with a three-fifths supermajority in the Senate—alternative cuts of an equal amount. This, in essence, delegates away Congress' legislative powers.
But the real kicker is that it will be nearly impossible for future Congresses to repeal the board, a profound assault on the Constitution. Congress will have a small window between Jan. 1 and Feb. 1 in 2017 to introduce a joint resolution calling for its repeal. If the resolution passes with a supermajority by Aug. 15, it will be dismantled in … 2020.
It might be easier to dissolve the union than the board.
This is not the administration's only monster child. There is also the Consumer Financial Protection Agency created by the Dodd-Frank financial reform legislation. It'll be headed by one czar, not even a full board like the ObamaCare advisory board, who'll have sweeping powers to dictate to banks, lending institutions, credit unions and payday lenders among others what financial instruments they can offer and on what terms. The czar (Obama has nominated former Ohio Attorney General Richard Cordray) won't be subject to removal by Congress, and lawmakers won't be able to be repeal his directives without a two-thirds majority. What's more, the agency will draw its funding from the Federal Reserve without any congressional oversight.
4. Killing the auto industry through regulatory fiat. At least the president worked with Congress before delivering the financial and health care industries to the clutches of bureaucrats. If only the auto industry had been so lucky. The administration's newly proposed fuel economy standards are the regulatory equivalent of declaring war on carmakers, as I noted in my last column. However, as with Libya, the administration failed to involve Congress, in a clear departure from past precedent when Congress has set the standards and the EPA has implemented them. This time, the EPA is doing both.
Reportedly, Obama used to omit the separation-of-powers doctrine when he taught constitutional law. But he must have also skipped school when the doctrine was covered because he evidently doesn't get it. Bush was a bad student. What's Obama's excuse?
Reason Foundation Senior Analyst Shikha Dalmia is a columnist at The Daily, America's first iPad newspaper, where a version of this column was originally published. Cynthia Bell of Seton Hall University provided valuable research assistance.