Defending the Imperial Presidency—When the Mood Strikes

by Jonah Goldberg

In today’s Washington Post, Ruth Marcus offers a Stakhanovite defense of Obama’s end-runs around Congress, replete with much mocking of Republicans for asserting their Constitutional prerogatives. She says of Republican complaints: “These assessments are overwrought, veering on unhinged.” The column, titled “Obama has a pen, a phone and a precedent” she offers a generous list of defenses for Obama’s unilateral actions. Number four sticks out in particular (emphasis mine):

Fourth, assessments of presidential overreach are inherently matters of situational ethics: How you judge whether a president is overstepping his authority is inevitably colored by whether you agree with the substance of that exercise.

Put more bluntly, much of the hoopla about presidential imperialism is politics dressed up in constitutional clothing, to be put on and taken off depending on which party holds the White House.

Thus, Democrats condemned what they saw as Bush’s unilateral excesses, while Republicans remained largely silent and unconcerned. Now, the roles are precisely reversed.

Indeed. Maybe the political parties aren’t the only ones plagued by situational ethics. The parallel isn’t perfect since Republicans controlled Congress at the time. But Marcus was far more critical of President Bush’s “contempt for Congress” than she is of Obama’s. From her 2006 column titled “Contempt for Congress“:

Tension between Congress and the executive branch is deliberately baked into the constitutional cake; this is both unavoidable and healthy. In legal scholar Edward S. Corwin’s phrase, even when it comes to foreign affairs, the Constitution represents an “invitation to struggle” between the two branches. The Bush administration is not the first White House that has rebuffed congressional assertions of authority.

But it has been among the most brazen, and it has been enabled in that stance by a compliant congressional majority that too often seems willing to play subservient handmaiden to an all-powerful executive. Hard as it may be to remember, one-party government doesn’t necessarily guarantee a supine Congress; just ask the Clinton administration officials who felt the legislative lash during their first two years in power.
 

One distinction between now and then is that in 2006 Marcus found room to condemn both Congressional Republicans and the Republican President. “A micromanaging Congress can be as much a problem as an imperial president,” she helpfully reminded us. This was all sparked by the White House’s alleged failure to work amicably with Arlen Specter & Co. on mine safety issues. She wrote:

And this, in a nutshell, is the way this executive branch treats its supposedly equal partner: as an annoying impediment to the real work of government. It provides information to Congress grudgingly, if at all. It handles letters from lawmakers like junk mail, routinely tossing them aside without responding.

It unabashedly evades the need for Senate confirmation of officials by resorting to recess appointments, even for key government posts; see, for example, the recent recess appointments of the top immigration official, the number two person at the Defense Department and half of the Federal Election Commission.

It thinks of congressional oversight as if it were a trip to the dentist, to be undertaken reluctantly and gotten over with as quickly as possible. Most astonishingly, it reserves the right simply to ignore congressional dictates that it has decided intrude too much on executive branch power. President Bush’s thumb-in-the-congressional-eye statement when he signed the bill banning torture of detainees, in which he announced that he would construe the law “in a manner consistent with the constitutional authority of the President,” is one recent, and flagrant, example.

Gosh. It’s not like Obama has ever treated Congress like an “annoying impediment to the real work of government,”or provided information to Congress “grudgingly, it at all.” No doubt Congressmen feel like their letters to the Obama White House and Justice Department are treated lovingly. No thumbs-in-the-congressional-eye from this president! After all, Obama has a pen, a phone and a precedent — and Ruth Marcus in his situational corner.