The Law School Magazine  ·  Spring 2011 : Departments

What has the Obama presidency meant for the growth of presidential power?

By - Spring 2011
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In Madison’s Nightmare: Executive Power and the Threat to American Democracy (University of Chicago Press 2009), Professor Peter M. Shane wrote about what he describes as an accelerating trend since 1981 towards “presidentialism.” He observed a steady increase in presidential power since at least the New Deal. But Professor Shane believes that more recent decades have witnessed an exponential growth in executive branch claims of unilateral authority. He says that the administration of George W. Bush seemed to epitomize the trend, making aggressive claims of unilateral authority regarding warrantless wiretapping, the detention and trial of enemy combatants, the capacity to disregard statutory law based on constitutional disagreement, and, in general, the president’s supposed authority to dictate the policies of every office and officer within the federal executive branch. We asked Professor Shane if the Obama administration has continued to accelerate the trajectory of presidential power that he observed in the Reagan through Bush 43 administrations.

Since 2008, Congress has enacted a number of significant programs substantially expanding the involvement of the federal government in various aspects of the private economy – whether to save the car industry, maintain the viability of the banking sector, or reform health insurance. Is this worrisome for Americans who are anxious about the scope of executive power?

Statutory programs like TARP, which started under the Bush administration, or the stimulus activities authorized by the American Recovery and Reinvestment Act of 2009, do expand the powers of the executive branch. These additional powers, however, go no further than the terms of the statutes that grant them. Congress may amend those powers or repeal them, and keep executive branch implementation of the relevant statutes under systematic oversight. Courts have authority to review how the executive branch fulfills its statutory functions. So, although I know that many Americans worry about the scope of government in general, the focus of my own concerns is different. I am anxious not so much about what Congress legally allows the president to do, but more about what presidents claim they may do without (or even in spite of) the laws that Congress enacts.

Are there obvious differences between the Bush and Obama administrations in terms of claiming unilateral executive power?

The Obama administration has staked out two marked differences with its predecessor in terms of general separation of powers philosophy. First, in asserting powers of presidential initiative, the Obama administration strongly prefers legal justifications that rest on statutory authority, rather than on claims of implicit constitutional power. The administration is thus slower to stake out claims that presidential action is beyond the scope of congressional regulation or judicial review. Second, unlike the Bush administration, the Obama administration most often treats the rule of law not as an impediment to defeating terrorism, but rather as a critical tool of American policy. These philosophical differences sometimes do and sometimes do not produce actual operational differences between the two administrations. An obvious difference is that the Obama administration has all but abandoned the practice of writing presidential signing statements that assert power to ignore or reshape statutory provisions at odds with the president’s constitutional theories.

Are there similarities between the Bush and Obama administrations that you find surprising?

The Obama pattern on separation of powers issues has two sides. On one hand, he or his cabinet officers have issued a number of memoranda that purport to put some principled difference between the separation of powers practices of the Obama administration and the practices of his predecessor. On the other hand, he rarely repudiates the Bush administration’s formal legal arguments. The picture that emerges is generally one of somewhat greater presidential restraint, while maintaining the possibility of asserting unilateral presidential power when it would serve what the president regards as an essential practical purpose.

Within that framework, I have been most surprised by the Obama administration’s apparently limited interest in creating accountability and a clear public record on abuses under the Foreign Intelligence Surveillance Act between 2001 and 2009. I understand, of course, that the U.S. faces determined adversaries and that we do not want to compromise the lawful acquisition of communications intelligence that is essential to public safety and security. On the other hand, the Bush administration advanced dangerous and, in my view, legally baseless claims of inherent surveillance authority that quite likely undergirded some significant illegal activity. The American people deserve to know what happened and to have an informed public debate over what should be our surveillance policy going forward.

If the Obama administration so frequently operates in ways that resemble the Bush administration with respect to presidential power, what difference does it make that President Obama articulates a different philosophy of presidential power?

As I wrote in my book, “presidentialism is a form of institutional ambition that feeds on itself.” It undermines the rule of law and creates a decision making atmosphere that quite foreseeably produces ill-conceived and even unlawful executive branch initiatives. What government officials want us to believe – what they should want us to believe – is that they are attentive to the legal limits on their authority even when those restraints are vague and they could probably get away with ignoring the law. What we saw between 2001 and 2009 was a relentless campaign within the executive branch to expand presidential power for its own sake. The result was an organizational ethos of entitlement that nurtured abuses from the so-called “torture memos” to the possibly unlawful surveillance of millions of American citizens.

Is the trend towards an ever-more-powerful presidency likely ever to recede?

I doubt the curve will ever head downward. I would be happy, however, and our democracy would be safer, if the trajectory at least slowed down. Amid profound national problems, when the public expects the president to do everything from creating new jobs to stopping leaking oil wells, presidents will be reluctant to concede that they lack whatever powers they think they need to serve the public interest. Keeping the president accountable, however, is itself a first-order public need – and one that everyone needs to worry about, even when a president we like is in office.

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