Originalism sits uneasily with the concept of independent agencies, and textualism raises questions about the basis for some agencies' independence.
As a presidential candidate in 2007 and 2008, Barack Obama made stirring pledges to respect the rule of law and to abide by constitutional limitations on certain presidential powers. He left no doubt that he intended to put an end to George W. Bush-era governing practices that many argued had resulted in a dangerous unleashing of unconstrained presidential powers. On such topics as initiating war, military detention, interrogation practices, rendition, domestic surveillance, candidate Obama strongly criticized the Bush administration for having violated longstanding U.S. constitutional and even moral principles. He went so far as to argue that the U.S. had lost much of its stature and credibility in the world due to Bush’s actions and that undoing the damage would require new leadership and an entirely different governing vision. Obama further promised government transparency, that he would never issue a signing statement to alter legislative intent, that indeed he would respect Congress’s constitutional-based powers and would build relationships with legislators rather than try to govern without them.
Many Americans took the Democratic nominee’s promises seriously. To a public long used to skepticism of big promises in political campaigns, things seemed different in 2008. Obama was an extraordinarily stirring orator who spoke with passion on these issues and thus it is hard to blame people for thinking that things really would be different if Obama won the presidency. Such respected figures as Colin Powell called Obama a “transformational”, even once-in-a-lifetime type leader. Obama could even credibly claim some authority on issues of constitutional law and the limits of presidential powers, as he had previously been a Harvard Law Review editor, and briefly a professor who taught constitutional law.
And yet, as Jack Goldsmith accurately details in his latest book, President Barack Obama not only has not altered the course of controversial Bush-era practices, he has continued and expanded upon many of them. On initiating war, as a candidate for the presidency in 2007, Obama said that “the president doesn’t have the power under the Constitution to unilaterally authorize a military attack,” yet that is exactly what he did in exercising the war power in Libya. He has also said that he will exercise the power to act on his own to initiate military action in Syria if it’s leader ever crosses the “red line” (i.e., use of chemical weapons). He has issued a number of signing statements that directly violate congressional intent. He has vastly expanded, far beyond Bush’s actions, the use of unconfirmed and unaccountable executive branch czars to coordinate policies and to make regulatory and spending decisions. The president has made expanded use of executive privilege in circumstances where there is no legal merit to making such a claim and he has abused the principle of the state secrets privilege. His use of the recess appointment power on many occasions has been nothing more than a blatant effort to make an end-run around the Senate confirmation process. He has continued, and expanded upon, the practice of militarily detaining persons without trial or pressing charges (on the condition that the detention is not “indefinite”). In a complete reversal of his past campaign rhetoric, the president on a number of occasions has declared his intention to act unilaterally on a variety of fronts, and to avoid having to go to Congress whenever he can do so.
There are varied explanations for the president’s total reversals. The hard-core cynics of course simply resort to the “they all lie” explanation. Politicians of all stripes say things to get elected but don’t mean much of it. Recently I saw a political bumper sticker announcing “BUSH 2.0” with a picture of Obama. Many who enthusiastically supported Obama are profoundly disappointed with his full-on embrace of Bush-like unilateralism and this administration’s continuation of many of his predecessor’s policies.
Goldsmith, a law professor who led the Department of Justice’s (DOJ) Office of Legal Counsel from October 2003 to June 2004, during George W. Bush’s first term, says that there were powerful forces at work in the U.S. governmental system that ensured that the president would continue many of the policies and practices of his predecessor. The president reads the daily terrorism threat reports, which has forced him to understand that things really do look differently from the inside. From this standpoint, Obama likely determined that many of Bush’s policies actually were correct and needed to be continued. “The personal responsibility of the president for national security, combined with the continuing reality of a frightening and difficult-to-detect threat, unsurprisingly led Obama, like Bush, to use the full arsenal of presidential tools,” writes Goldsmith. He further argues that Obama lacked leeway to change course in part because many of Bush’s policies “were irreversibly woven into the fabric of the national security architecture.” For example, former president Bush’s decision to use the Guantanamo detention facility created an issue for Obama that he otherwise never would have confronted. And the use of coercion on suspects made it too complicated to then employ civilian courts to try them. In perhaps the most telling example of the limits of effecting change, Obama could not end what Bush had started, even though the president issued an executive order (never carried out) to close the detention center.
Here Goldsmith somewhat overstates his case. Obama was not necessarily consigned to following Bush’s policies and practices, although undoubtedly his options may have been constrained by past decisions. But consider the decision whether the government should have investigated and then taken action against illegal and unconstitutional acts by officials in the Bush Administration, particularly in the DOJ, NSA, and CIA. President Obama said it was time to look forward, not backward, thus sweeping all under the rug. Nothing “irreversibly woven” there, but rather the new president made a choice that he absolutely did not have to make.
Finally, Goldsmith adds that Obama, like most of his predecessors, assumed the executive branch’s institutional perspective once he became president. If it is true about Washington that where you stand on executive powers depends on where you sit, then should it be any surprise that President Obama’s understanding differs fundamentally from Senator Obama’s? Honestly, I find that quite sad. Do the Constitution and principles of separation of powers and checks & balances mean so little that we excuse such a fundamental shift in thinking as entirely justified by switching offices?
Goldsmith’s analysis becomes especially controversial when he turns to his argument that, contrary to the critiques of presidential power run amok, the contemporary chief executive is more hampered in his ability to act in the national interest than ever before. In 2002, Vice President Richard Cheney expressed the view that in his more than three decades of service in both the executive and legislative branches, he had witnessed a withering of presidential powers and prerogatives at the hands of an overly intrusive and aggressive Congress. At a time when most observers had declared a continuing shift toward presidential unilateralism and legislative fecklessness, Cheney said that something quite opposite had been taking place. Goldsmith is far more in the Cheney camp on this issue than of the critics of modern exercises of presidential powers. Goldsmith goes beyond the usual emphasis on formal institutional constraints on presidential powers to claim that a variety of additional forces also are weighing down and hampering the ability of the chief executive to act. As he explains, “the other two branches of government, aided by the press and civil society, pushed back against the Chief Executive like never before in our nation’s history”.
Defenders of former president Bush decry what they now perceive as a double standard: critics who lambasted his over expansive exercises of powers don’t seem so critical of President Obama doing the same. Goldsmith makes the persuasive case that in part the answer is that Bush was rarely mindful of the need to explain his actions as necessities rather than allow critics to fuel suspicions that he acted opportunistically in crisis situations to aggrandize power, whereas Obama has given similar actions a “prettier wrapping”. Further, Obama, to be fair, on several fronts early in his first term “developed a reputation for restraint and commitment to the rule of law”, thus giving him some political leeway later on.
A substantial portion of Goldsmith’s book presents in detail his case that various forces outside of government, and some within, are responsible for hamstringing the president in unprecedented fashion: Aggressive, often intrusive, journalism, that at times endangers national security; human rights and other advocacy groups, some domestic and other cross-national, teamed with big resources and talented, aggressive lawyers, using every legal category and technicality possible to complicate executive action; courts thrust into the mix, having to decide critical national security law controversies, even when the judges themselves have little direct knowledge or expertise on the topics brought before them; attorneys within the executive branch itself advising against actions based on often narrow legal interpretations and with little understanding of the broader implications of tying down the president with legalisms.
Just as he describes how a seemingly once idealistic candidate for president as Barack Obama could see things differently from inside government, so too was Goldsmith at one time on the inside, and thus perhaps it is no surprise that he would perceive more strongly than other academic observers the forces that he believes are constantly hamstringing the executive. But he is no apologist for unfettered executive power and he takes to task those in the Bush years who boldly extolled theories of the unitary executive and thereby gave credibility to critics of the former president who said that his objective was not merely to protect the country from attack, but to empower himself and the executive branch. Goldsmith praises institutional and outside-of-government constraints on the executive as necessary and beneficial to the Republic. In the end, he sees the balance shifting in a different direction than many leading scholars of separation of powers. And unlike a good many presidency scholars and observers, he is not a cheerleader for a vastly powerful chief executive.
Goldsmith’s work too is one of careful and fair-minded research and analysis. He gives substantial due to those who present a counter-view to his own, and who devote their skills and resources to battling what they perceive as abuses of executive power. Whereas they see dangers to an unfettered executive, Goldsmith wants us to feel safe that there are procedural safeguards against presidential overreaching, although he also wants us to be uncomfortable with what he believes now are intrusive constraints on the chief executive’s ability to protect the country.
Goldsmith may be correct that there are more actors than ever involved in trying to trip up the president’s plans, but that does not mean that our chief executives are losing power and control due to these forces. Whether it is war and anti-terrorism powers, czars, recess appointments, state secrets privilege, executive privilege, signing statements, or any of a number of other vehicles of presidential power, our chief executives are using more and more means of overriding institutional and external checks on their powers. And by any measure, they are succeeding much more than the countervailing forces are limiting them.