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Executive Privilege: Signing away America’s laws and government

Written By | Jun 6, 2014

WASHINGTON, June 6, 2014 — The Obama administration is in the process of dramatically expanding executive power, threatening our system of representative government.

Whatever the merits the Bergdahl-Taliban swap, there is no question that President Obama bypassed a federal law requiring him to notify Congress a month before he transferred the five Taliban detainees necessary to complete the deal.

Senator Diane Feinstein, D-Calif., 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, “there were very strong views and they were virtually unanimous against the trade.”

The administration argues the because of reports regarding the risk of harm to Sgt. Bowe Bergdahl, it had a duty to ignore the law.

Jack Goldsmith, a Harvard Law School professor who was a senior Justice Department lawyer in the Bush administration, called this interpretation unconvincing, noting that elsewhere in the same act Congress imposed requirements that contained explicit exceptions.

Abuses of executive power are, of course bipartisan.

When George W. Bush’s legal team made their 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.

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 on the Patriot Act.

During the 2008 campaign, Obama, then a senator, called Bush’s practice an “abuse,” saying that he 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 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 by 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 that, “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 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 President 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.”

Gene Healy, Vice President of the Cato Institute, notes that, “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.'”

Or consider 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 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 contravenes the president’s promises of transparency.

Recent legislation has made legal the president’s right to detain a person indefinitely on 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, President 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.  This is clearly an abuse of presidential power.

During the years of the New Deal, when power of the president was dramatically expanded, Republicans, who were in 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 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, and 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 that no one would turn back government authority which has once 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 this is true. Republicans opposed big government when 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 even beyond what the Bush administration was prepared to do.

The growth of government power has been a steady process, regardless of who 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 had in mind. 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 as a result of their own experience and the experience of the world.

Allan C. Brownfeld

Received B.A. from the College of William and Mary, J.D. from the Marshall-Wythe School of Law of the College of William and Mary, and M.A. from the University of Maryland. Served as a member of the faculties of St. Stephen's Episcopal School, Alexandria, Virginia and the University College of the University of Maryland. The recipient of a Wall Street Journal Foundation Award, he has written for such newspapers as The Houston Press, The Washington Evening Star, The Richmond Times Dispatch, and The Cincinnati Enquirer. His column appeared for many years in Roll Call, the newspaper of Capitol Hill. His articles have appeared in The Yale Review, The Texas Quarterly, Orbis, Modern Age, The Michigan Quarterly, The Commonweal and The Christian Century. His essays have been reprinted in a number of text books for university courses in Government and Politics. For many years, his column appeared several times a week in papers such as The Washington Times, The Phoenix Gazette and the Orange County Register. He served as a member of the staff of the U.S. Senate Internal Security Subcommittee, as Assistant to the research director of the House Republican Conference and as a consultant to members of the U.S. Congress and to the Vice President. He is the author of five books and currently serves as Contributing Editor of The St. Croix Review, Associate Editor of The Lincoln Review and editor of Issues.