While everyone else is busy rebutting Jacqueline Stevens, I wanted to mention a different piece in the NYT‘s Sunday Review: Ross Douhat’s take on “All the President’s Privileges.” Douhat’s basic take is that political partisans switch their views on executive power depending on the party of the executive in question. Thus, Democrats who thought George W. Bush was acting unconstitutionally now think Barack Obama’s assertion of the same powers is just dandy.
The general point is quite true, if not quite new; sixty years ago Justice Robert Jackson, in his famous 1952 Youngstown Steel concurrence, lamented how often even judges, “no less than executives and publicists, often suffer the infirmity of confusing the issue of a power’s validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant.”
I have spoken and written (including on this blog, e.g. here) about the ways in which Obama has become quite comfortable with utilizing unilateral authorities that as a candidate he was at best ambivalent about.
Two and a half quibbles, though. First, it is hard to argue that the president’s recent administrative directive shifting enforcement priorities within the Department of Homeland Security is a close parallel to the examples Douhat is (rightly) more concerned about, such as the targeted killings of American citizens by drone strike. (Or even the two-faced approach of bragging about the effectiveness of, while denying the existence of, said drones.) The executive privilege assertion, as I noted here, is very much in keeping with claims by a variety of past incumbents (and recent jurisprudence as well.) And the “administrative presidency” literature centers on ways presidents have sought to mold statutory implementation along their preferred lines; Elena Kagan’s mini-epic “Presidential Administration” describes how the last Democratic president did just this. If it is true that presidents’ reading of their mandate to faithfully execute the law has a definition of fidelity drawn from “Mad Men,” there is nonetheless clear discretion delegated to presidents in their enforcement of statute.
And the Obama administration has in fact more broadly at least tried to justify its assertions of authority as grounded in law. (Sometimes, the law of war; often, the Authorization for the Use of Military Force passed just after the September 11 attacks.) While this has not always been convincing, a fair reading must point out that it has also meant, at times, not utilizing unilateral authority. For example, Obama’s supposed embrace of the Guantanamo Bay prison facility springs from his compliance with repeated statutory demands making that closure nearly impossible in practical terms. Could he have claimed that these statutes infringed on his authority as commander-in-chief, ignored them, moved the detainees on-shore, and closed the prison? Such a sequence would have been consistent with the Bush administration’s broadest view of the unitary executive. (But it would probably not have changed the utilization of military tribunals; they just would have taken place somewhere else.)
Further, time matters. A page of history, as Oliver Wendell Holmes said, is worth a volume of logic. And presidents come into office facing a different institutional environment than their predecessors, one shaped by successive precedential actions. Obama, for instance, in searching for guidance in defining “hostilities” within the War Powers Resolution, found a variety of cases in the Reagan (e.g., in the Persian Gulf) and Clinton (in Kosovo) administrations that legal advisers like Harold Koh were bound to take seriously. If Obama chose that history over the logical definition of “hostilities,” then, he was not necessarily being hypocritical – just presidential.