Wall Street Journal columnist Kimberley Strassel rightly condemns Barack Obama's "imperial presidency," saying that in areas such as immigration, labor law, executive appointments, and environmental regulation, "Obama proposes, Congress refuses, [but] he does it anyway." Sometimes, as with the lawless Chrysler rescue and the "extralegal claims fund" that Obama extorted from BP after the Deepwater Horizon oil spill, he does not even bother to seek congressional approval. Strassel's critique is mostly persuasive, but it is marred by a couple of bogus distinctions between Obama and his Republican predecessor, plus a notable omission that likewise seems designed to make George W. Bush look better.
The first bogus distinction has to do with drug policy. Strassel claims "Obama disagrees with federal law, which criminalizes the use of medical marijuana." If so, why has the Obama administration steadfastly refused to reclassify marijuana so it can legally be used as a medicine, a power it has under the Controlled Substances Act? Instead it absurdly insists that marijuana has no medical applications, cannot be used safely, and poses a bigger abuse risk than cocaine, morphine, and methamphetamine. Notwithstanding the fact that Obama opposes loosening the federal ban on marijuana, Strassel says Congress' refusal to do so has led the president to "instruct…his Justice Department not to prosecute transgressors." This will come as news to the hundreds of medical marijuana suppliers shut down by federal raids or threats of prosecution and forfeiture since Obama took office. By some measures (frequency of raids, for example), Obama's crackdown on medical marijuana has been more aggressive than Bush's, and both administrations have in practice taken essentially the same approach, going after growers and sellers rather than individual patients. That policy does not reflect tolerance or compassion so much as the feds' customary allocation of resources: The DEA, which accounts for less than 1 percent of marijuana arrests, has never shown much interest in minor possession cases.
The second bogus distinction between Obama and Bush has to do with "auto bailouts," one of the examples Strassel (correctly) cites to illustrate Obama's power grabs. She seems to have forgotten that it was Bush who initiated the illegal use of money from the Troubled Asset Relief Program to rescue American car manufacturers from their own mistakes (a policy that Obama welcomed as a senator and expanded as president). That episode followed precisely the pattern that Strassel is decrying: The Bush administration unsuccessfully sought congressional approval for bailing out car companies, then did it anyway. This example also undermines Strassel's mitigation of Bush's abuses: She incorrectly states that "his aggressive reading of executive authority was limited to the area where presidents are at their core power—the commander-in-chief function."
Speaking of which, is there a purer example of Obama's unilateralism than his completely optional yet congressionally unapproved air war against Muammar al-Qaddafi's regime in Libya? Although the Constitution gives Congress the power to declare war, Obama never sought such a declaration. He even argued, against the advice offered by his own Office of Legal Counsel, that the War Powers Act, which requires congressional authorization for the continued use of military force without a declaration of war after 60 days, did not apply, because the bombs and missiles raining down on Libyan forces did not constitute "hostilities." In fact, Obama has shown less deference to congressional authority in this area than Bush, who at least sought and received legislative approval (though not formal declarations) for his wars in Afghanistan and Iraq (the latter of which Obama the candidate condemned as an unnecessary "war of choice"). But if Strassel acknowledged that there are limits to the president's powers even when he claims to be protecting national security, that would open the door to a broader comparison between Obama and Bush, which would show, in addition to striking similarities, ways that each has been especially egregious. Contemplating differences such as direct torture vs. torture by proxy, unreviewable detention vs. summary execution via drone, and warrantless wiretapping with or without statutory authorization, one does not come away impressed with either man's respect for constitutional limits.
Selective outrage at abuses of executive power is a bipartisan tendency, of course. In an example I noted a few months ago, Andrew Rosenthal, editor of the New York Times editorial page, argued that Obama's abuses are not as bad as Bush's because they are responses to a lack of congressional cooperation. In other words, Obama is happy to ask Congress for permission, as long as Congress says yes. As several of the examples cited above demonstrate, even that is not true.
More on executive power here.