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The Conservative Curmudgeon
July 3, 2014

The Continuing Growth of Executive Power
Is a Threat to Representative Government
by Allan C. Brownfeld
fitzgerald griffin foundation

ALEXANDRIA, VA — In recent days, the Obama administration appears to be in the process of dramatically expanding executive power, threatening our system of representative government.

Whatever the merits of the return of Sgt. Bowe Bergdahl from Afghanistan turn out to be, it seems beyond question that President Obama bypassed a federal law requiring the Pentagon to notify Congress a month before he transferred the five Taliban detainees to complete the deal.

Senator Diane Feinstein (D-CA), the chairwoman of the Senate Intelligence Committee, noted that when conversations between the Obama administration and Congress about the potential swap were held 18 months earlier, “[T]here were very strong views, and they were virtually unanimous against the trade.”

The administration argues that it had a right to ignore the law because of reports regarding the risk of harm to Bergdahl. Jack Goldsmith, a Harvard Law School professor who was a senior Justice Department lawyer in the Bush administration, called this interpretation unconvincing. He noted that elsewhere in the same act, Congress imposed requirements that contained explicit exceptions.

 

To permit President Obama, or any president, to execute American citizens without judicial review and outside the theater of war gives him the power of judge, jury, and executioner without any check or balance. Such an action is clearly an abuse of presidential power.

  

Abuses of executive power are, of course, bipartisan. When George W. Bush’s legal team made frequent claims that the commander-in-chief could bypass statutory restrictions at his discretion, it echoed the current Obama team by saying it would “construe” what appeared to be legal mandates as merely advisory or as containing unwritten exceptions.

Mr. Bush made many of those claims in signing statements. He used that device to advance sweeping theories of executive power and challenged about 1,200 provisions of laws, more than twice as many as all previous presidents combined, including a ban on torture and oversight requirements in the Patriot Act.

During the 2008 campaign, Obama, then a senator, called Bush’s practice an “abuse,” saying that he himself would use the device with more restraint. He then defined restraint as not issuing statements that would “nullify or undermine Congressional instructions.” After he became president, he issued a memorandum that The New York Times described as “subtly relaxing that standard, instead defining restraint as invoking only well-founded legal theories.”

While Obama has not issued as many signing statements as George W. Bush, he employs them in much the same way. In December, he issued a signing statement about the 30-day notice statute. It said that in certain circumstances, other restrictions on transfers “would violate constitutional separation of powers principles” and that if those circumstances arose, “my administration will implement them in a manner that avoids Constitutional conflict.”

By now acting on that claim, critics say, Obama has taken another step toward practices of his predecessor that he once criticized.

In 2006, a 10-member panel of lawyers and legal scholars assembled by the American Bar Association (ABA) declared, “The President’s Constitutional duty is to enforce laws he has signed into being unless and until they are held unconstitutional by the Supreme Court or a subordinate tribunal. The Constitution is not what the President says it is.”

As president, Obama has issued close to 30 signing statements. In the Defense Authorization Act alone, he challenged more than 20 sections of the law. Among the challenges have been assertions of his power to close Guantanamo Bay and to disregard whistleblower protections.  

Obama’s use of the signing statement has been indistinguishable from that of Bush. “The volume is a little less,” said Bruce Fein, who was a member of the ABA panel. “His conception of executive power is equally as grandiose as Bush.”

The growth of presidential power in recent years represents a serious threat to representative government. The idea of the executive “executing” the laws passed by the elected representatives of the people in the Congress seems to those in power, whether Republicans or Democrats, to be an old-fashioned notion.  

When Obama unilaterally called a halt to deportation proceedings for certain unauthorized immigrants who came to the U.S. as minors, the eligibility requirements roughly tracked the requirements of the Dream Act, which had not been passed by Congress.

In an interview with a panel of Latino journalists, the president said:  “The notion that somehow I can just change the laws unilaterally is just not true. We live in a democracy. You have to pass bills through the legislature, and then I can sign it.”

    

An all-powerful executive, whether liberal or conservative, Republican or Democrat, is a threat to freedom and accountability...

 

Gene Healy, Vice President of the Cato Institute, notes, “As it happens, Obama’s ‘royal dispensation’ for young immigrants is hardly the most terrifying instance of administration unilateralism. In fact, as a policy matter, it’s a humane and judicious use of prosecutorial resources. But given the context, it stinks. It looks uncomfortably like implementing parts of a bill that didn’t pass and, carried out as it was with great fanfare and an eye to the impending election, the move sits uneasily with the president’s constitutional responsibility to ‘take care that the laws be faithfully executed.’”

Another example is the president’s claim of “executive privilege” in withholding information about the Justice Department’s Operation Fast and Furious, which deliberately put assault weapons in the hands of Mexican drug cartels as part of a sting and then lost track of hundreds of them. A Border Patrol agent was killed in 2010, apparently by one of these guns.

Executive privilege, affirmed by the U. S. Supreme Court in U.S. v. Nixon, is historically limited to the president’s own discussions. President Obama has now extended it to his attorney general. This act contravenes the president’s promises of transparency.

Recent legislation has made legal the president’s right to detain a person indefinitely on the suspicion of affiliation with terrorist organizations or “associated forces,” a broad, vague power that can be abused without real oversight from the courts or the Congress.

At the same time, American citizens can now be targeted for assassination or indefinite detention. Recent laws have also canceled the restraints in the Foreign Intelligence Surveillance Act of 1978 to allow unprecedented violations of our right to privacy through warrantless wiretapping and government mining of our electronic communications.

According to The New York Times, Obama has been personally deciding upon drone strikes in Yemen and Somalia and the riskiest ones in Pakistan, assisted only by his own aides. Editorially, The Times declares that no president “... should be able to unilaterally order the killing of American citizens or foreigners located far from a battlefield, depriving Americans of their due process rights, without the consent of someone outside his political inner circle. How can the world know whether this president or a successor truly pursued all methods short of assassination, or instead, to avoid a political charge of weakness, built up a tough-sounding list of kills?”     

To permit President Obama, or any president, to execute American citizens without judicial review and outside the theater of war gives him the power of judge, jury, and executioner without any check or balance. Such an action is clearly an abuse of presidential power.

During the years of the New Deal, when the power of the president expanded dramatically, Republicans, who were in the opposition, objected to the growth of such power as a threat to freedom. Later, when Republicans held the power of the presidency, they, too, expanded executive power, and the Democrats, now in opposition, objected. This has been characterized as argument from circumstance, not principle. If you hold power, you expand it. No one in power has an incentive to cede back the power that has been assumed.  

Even at the beginning of the Republic, perceptive men such as John Calhoun predicted that government would inevitably grow. Those in power would advocate a “broad” use of power, and those out of power would always argue for a “narrow” use of power, and no one would turn back government authority once it has been embraced.

Calhoun was all too prophetic when he wrote the following in “A Disquisition on Government.”

“... Being the party in possession of government, they will... be in favor of the powers granted by the Constitution and opposed to the restrictions intended to limit them. As the major and dominant parties, they will have no need of these restrictions for their protection.... The minor or weaker party, on the contrary, would take the opposite direction and regard them as essential to their protection against the dominant party.... But where there are no means by which they could compel the major party to observe the restrictions, the only resort left them would be a strict construction of the Constitution.... To this the major party would oppose a liberal construction... one which would give the words of the grant the broadest meaning of which they were susceptible.”

Calhoun continued:  

“It would then be construction against construction, the one to contract and the other to enlarge the powers of the government to the utmost. But of what possible avail could the strict construction of the minor party be, against the liberal interpretation of the major party, when the one and the other be deprived of all means of enforcing its construction? In a contest so unequal, the result would not be doubtful. The party in favor of the restrictions would ultimately be annulled, and the government be converted into one of unlimited powers.”

Our history shows that Calhoun’s analysis is true. The Republicans opposed big government when the Democrats were in power, but spoke of concepts such as “executive privilege” when their own party held positions of authority. The Democrats have done exactly the same thing. Now, we see President Obama doing all the things he found objectionable when President Bush did them — and moving executive power beyond even what the Bush administration was prepared to do. The growth of government power has been a steady process, regardless of which party was in office.

The executive branch of government is increasingly unaccountable to the elected representatives of the people. This is not the system the authors of the Constitution intended. An all-powerful executive, whether liberal or conservative, Republican or Democrat, is a threat to freedom and accountability, as the Framers of the Constitution understood very well from their own experiences and the experience of the world. 

The Conservative Curmudgeon is copyright © 2014 by Allan C. Brownfeld and the Fitzgerald Griffin Foundation. All rights reserved. Editors may use this column if this copyright information is included.

Allan C. Brownfeld is the author of five books, the latest of which is The Revolution Lobby (Council for Inter-American Security). He has been a staff aide to a U.S. Vice President, Members of Congress, and the U.S. Senate Internal Subcommittee.

He is associate editor of The Lincoln Reveiw and a contributing editor to such publications as Human Events, The St. Croix Review, and The Washington Report on Middle East Affairs.

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