Obama still evolving on executive power?

Ross Douthat marveled yesterday on Barack Obama’s apparent evolution on executive power — and that of the Left as well.  When Obama ran for the presidency in 2008, he championed the Left’s hostility toward George W. Bush’s supposed “imperial presidency,” often using his experience as a Constitutional law lecturer to assail Bush for his unilateral approach to the job.  He even appointed Harold Koh, one of the Bush administration’s fiercest critics on the use of executive power, to work in the Obama administration at the Office of Legal Counsel.

Now, as Ross notes, rather than reverse the use of unilateral executive power, Obama has grown a lot more comfortable with it — and so has the Left:

On issues large and small, from the conduct of foreign policy to the firing of United States attorneys, the Bush White House pushed an expansive view of executive authority, and Democrats pushed right back — accusing it of shredding the constitution, claiming near-imperial powers and even corrupting the lawyers working in its service.

That was quite some time ago. Last week the Obama White House invoked executive privilege to shield the Justice Department from a Congressional investigation into a botched gunrunning operation by the Bureau of Alcohol, Tobacco, Firearms and Explosives. The previous week the White House invoked powers that President Obama himself had previously claimed to lack, unilaterally revising the nation’s immigration laws by promising to stop enforcing them against a particularly sympathetic population.

Both moves were entirely characteristic of this presidency. Obama campaigned as a consistent critic of the Bush administration’s understanding of executive power — and a critic with a background in constitutional law, no less. But apart from his disavowal of waterboarding (an interrogation practice the Bush White House had already abandoned), almost the entire Bush-era wartime architecture has endured: rendition is still with us, the Guantánamo detention center is still open, drone strikes have escalated dramatically, and the Obama White House has claimed the right — and, in the case of Anwar al-Awlaki, followed through on it — to assassinate American citizens without trial.

Ilya Somin notes that Obama has gone farther than Bush:

Douthat does not mention what was perhaps Obama’s biggest reversal on executive power. The man who in 2007 wrote that “[t]he President does not have 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,” last year waged a war against Libya without any congressional authorization. Even Bush never went that far.

Actually, the unilateral exercise of executive power started from the beginning of this presidency — and Gitmo is an example.  Without taking time to consult with Congress, overwhelmingly dominated by Democrats at that time, Obama issued an EO on his very first day in office ordering Gitmo closed within a year.  Obama had promised just such an order for almost two full years on the campaign trail, but soon discovered that it’s a lot easier to issue orders than to have them fulfilled when you go it alone.  By the time the next year rolled around, the Christmas Day bomber had scorched his gonads in a nearly-successful attempt to bomb a plane over Detroit, Nidal Hasan had killed 14 in a shooting spree at Fort Hood, and Americans decided they didn’t like the idea of giving Khalid Sheikh Mohammed a media platform in lower Manhattan near the World Trade Center location where his plot killed almost 3,000 people.

As I wrote in my column for The Fiscal Times, the problem with Obama’s use of executive power isn’tjust the hypocrisy involved — but also the exposure of his incompetence:

The most expansive use of extraordinary executive authority came next.  Obama demanded authorization to spend $800 billion in a stimulus package to rescue the economy and keep unemployment below 8 percent.  Democrats locked Republicans out of the crafting of the bill, and the end result gave Obama access to an amount of money in excess of the gross domestic product of Poland today, which ranks 23rd in world economies, with little oversight on its use.

Despite arguing that these extraordinary executive resources could succeed in rebuilding the economy and protecting jobs, unemployment soared to over 10 percent. It has not dropped below 8 percent since then, with the civilian population participation rate in the workforce plummeting to a 30-year low as millions despaired of finding work in the US economy.

Finally, of course, this week provided the ultimate in executive action.  Obama assertedexecutive privilege in an investigation of how guns run into Mexico by the ATF resulted in the deaths of hundreds in Mexico, the murders of two American law-enforcement agents (Border Patrol agent Brian Terry and ICE agent Jaime Zapata), and how the Department of Justice misled Congress by claiming the program didn’t exist and that ATF never allowed guns to walk across the border at all.

In this case, we have executive action designed to hide the failures of previous extra-legal executive action, this time within agencies that derive their authority in part from Congress itself.  That is likely to work out just as well as Obama’s previous assertions of extraordinary executive authority, and the escalation of the fight over Operation Fast and Furious practically guarantees that national media outlets will have to cover the scandal in much greater detail than over the past sixteen months of House Oversight Committee investigation.

The political problem with this much unilateral executive action is that when things go wrong, no one shares the blame.  Whatever momentary bump one gets for being a Man Of Action will evaporate rapidly when the action proves ineffective or counterproductive.  Obama has had too many of the latter and has no political cover from the consequences, and neither do those who sold out on limited executive power as soon as George W. Bush headed for Marine One on January 20th, 2009.

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