January 04, 2017 | by Garrett Epps
Every four years, an American citizen puts a hand on a holy book and swears to “preserve, protect, and defend the Constitution of the United States.”
Anxiety is understandably high in the weeks before a new hand hits that Bible. But as we obsess about the intentions of the incoming president, it is worth asking ourselves how well the current incumbent has preserved our governing document.
History will likely ponder long before rendering a clear verdict. The best we can say now is that, even for those like me who admire Barack Obama, the constitutional record is disturbingly mixed. Obama leaves the Constitution weaker than at the beginning of his terms. It now will pass into the hands of a chief executive who appears to have no respect for its limits.
Let’s dispense first with the off-the-rack critique of this administration—that it has in some way engaged in “executive overreach,” pushing executive power to new, Constitution-straining heights.
It’s a handy story, easy to tell, and opponents of the Administration are assiduous in repeating it. It is, however, mostly bosh. It puts powdered wigs and knee britches on mundane policy disputes and appalling legislative obstructionism. Most of the big court cases testing Obama’s powers have actually been statutory arguments, with no constitutional issue involved. They have been reported as constitutional clashes, but they were really run-of-the-mill legal disputes.
Compared with most presidents of the past half-century—and especially with his predecessor, George W. Bush—Barack Obama has in fact been quite reticent about asserting inherent “executive power” under the Constitution. Consider the use of “signing statements”—documents issued by a president when signing a bill, sometimes indicating that the executive branch will refuse to follow parts of the new law because it believes them unconstitutional. George W. Bush issued more than 160; Obama, in the same time period, 31.
In addition, the claim that “executive orders” are end-runs around Congress also doesn’t pass the laugh test. Every president since Washington has used them to implement laws passed by Congress—without them, bureaucrats can’t enforce new laws. (Some of the programs to which Obama’s critics most strenuously object—such as the so-called DACA/DAPA immigration initiative—didn’t flow from “executive orders” at all.)
But no matter how they have been promulgated, Obama’s uses of executive power have had an intriguing common thread. Under Ronald Reagan and the two presidents Bush, the executive branch often tied itself to the mast of a strong executive, one with “inherent” powers over war, peace, and law enforcement that Congress could not limit in any way. (After Congress passed the sweeping 2001 Authorization for the Use of Military Force, for example, Bush legal adviser John Yoo sent the president a memo advising that the Congress was out of line for passing it, because it suggested he needed authorization to attack any nation or group he chose at any time for any reason.)
Obama has never formally subscribed to this strong-executive theory. On paper, at least, he has insisted that he is working hard to fulfill the intent of Congress as expressed in statutes. This is a strategy I call “aggressive compliance”—it pushes the language of a statute as far as it can go in order to avoid a constitutional claim. In practical terms, the result is often the same—the executive gets its way––but there’s no corresponding assertion that Congress has no power. If, by some bizarre series of events, Congress collected itself to change a statute, and managed to overcome a presidential veto of that change, then, Obama would say, of course he would change his actions.
It’s better than simply proclaiming a president beyond the law. But it sometimes skates close to the edge of legality. Consider the administration’s claim that it could, without Congressional authorization, commit U.S. naval and air forces during the 2011 intervention in Libya. The action seemed to violate the 1973 War Powers Resolution, which requires a president to notify Congress before introducing U.S. forces into “hostilities,” and seek permission if that intervention lasts more than 60 days. Many presidents have claimed that the Resolution was an unconstitutional limit on their power. Obama instead issued a careful opinion admitting that the Resolution was valid—but suggesting that more than 100 cruise missile strikes, and dozens of air missions, were not, somehow, “hostilities.” It was too clever by half, and it is a lasting blot on Obama’s constitutional copybook.
Even worse, however, is the continued conduct of open hostilities in Iraq and Syria against the Islamic State despite the refusal of Congress to approve the military campaign. No one questions that the Constitution applies here; but because the two branches are unable to agree on the scope of American intervention, this most crucial of constitutional guarantees—the power of Congress to authorize military action—has gone by the board. This is not entirely the president’s fault—the administration and its allies have repeatedly begged Congress to at least hold hearings on an authorization bill. As is often the case in history, legislators would prefer to stay out of the arena so that they can later claim credit for victory but disclaim any role in disaster.
And just to underline how obsolete Congressional authorization has become, consider that the most searing foreign-policy attacks on Obama arise from the one occasion on which he announced he would not intervene abroad without Congressional authorization—his 2013 decision not to launch airstrikes against Syria without first going to Congress. Whether he was using constitutional caution as an excuse or not, the Constitution clearly required authorization, while the political class of both parties has treated Obama’s caution as contemptible.
As a civil-libertarian, Obama had his limits. Obama hands over to the Trump administration a National Security Agency that is pursuing a robust a program of domestic and foreign surveillance, under the relatively thin constraints provided by the Foreign Intelligence Surveillance Act Amendments of 2008. The Obama administration has been stunningly aggressive in its incursions on news-gathering by reporters, prosecuting leakers under the Espionage Act and demanding the phone records of 20 Associated Press reporters as part of a leak investigation. These were far beyond the previous norms––and are now part of the background practices inherited by the Trump Administration.
The drone warfare program that has grown up under this administration is also only nominally constrained by law, with prerogative for the air assassination of Americans abroad at the disposal of the new executive. The administration’s decision not to pursue any serious criminal investigation of torture and illegal detention under Bush means that the formal roadblocks to Trump’s resumption of these crimes (which he has promised) will be few. So well protected was the national-security establishment under Obama that its head, Director of National Intelligence James Clapper, was forced to admit lying to Congress under oath about the NSA “metadata” program––and suffered no adverse consequences as a result.
The above is a sobering record for an administration that liked to pose as a friend of the Constitution and of civil liberties. History’s judgment may be tempered by the evidence that Obama wanted to do better. He struggled for eight years, for example, to close the extraterritorial prison camp at Guantanamo. He did seek authorization for the IS campaign. He tried hard to reach across the partisan aisle to forge legislation.
In those efforts, he was largely stymied by an opposition whose commitment to genuine constitutionalism was, not to put too fine a point on it, almost nil. The new far-right Republican Party that emerged from the 2010 elections took, and takes, no responsibility for constitutional norms, whether it was honoring the obligations of the national debt or considering presidential nominees to judgeships and executive agencies.
But the job of a president is to overcome obstacles, build political support, and mobilize public opinion. Obama’s record is that of a smart, determined, but politically weak president. Regardless of fault, there’s little doubt that he leaves the Constitution weaker than he found it.