The Corner

Politics & Policy

Obama’s Imperial Presidency

President Obama’s farewell address was yet another piece of evidence that there is a real gap between what he did, what he accomplished, and how he behaved during his eight years in power and what the president thinks he did. For example, Obama spent a good amount of time complaining about the cycle of outrage, but he failed to acknowledge the role he played in fueling it — do you remember his many comments against Fox News or his jokes over the years about Republicans and former President Bush at the White House Correspondents dinners? Nor does he want to admit that no one is louder in the outrage industry than members of his own team (National Review has done a good job in documenting this).

Another area of disconnect is the role he played in constraining undue powers of government. He said:

That’s why, for the past eight years, I’ve worked to put the fight against terrorism on a firm legal footing. That’s why we’ve ended torture, worked to close Gitmo, and reform our laws governing surveillance to protect privacy and civil liberties.

Sure, the president revoked the Bush-era directives authorizing torture, but it’s still bizarre for him to brag about the rest, considering how little time he spent trying to close Gitmo and his embrace of the expanded use of executive orders to pursue a vast increase of drone strikes against militants and terrorists. President Bush — who at least was consistent between what he claimed to believe in and his actions on this front — authorized 50 of these strikes while Obama authorized 506. The civilian toll under Obama is close to 400 versus 195 for Bush. So much for the Nobel Peace Prize president.

More strange is the undertone of concern for the new president’s power that we get from the outgoing president and his team. Take Vice President Joe Biden telling donors and members of Congress that “the worst sin of all is the abuse of power,” and demanding that they fight hard to prevent it from the incoming administration. Where was Biden when President Obama was acting unilaterally and without Congress on everything from immigration to guns to terrorism? Gene Healy writes over at Reason:

As Obama’s tenure comes to a close, it’s clear his has been a presidency of enormous consequence. But his most lasting legacy will be one few — perhaps least of all Obama himself — expected. He will leave to his successor a presidency even more powerful and dangerous than the one he inherited from Bush. The new powers he’s forged now pass on to celebrity billionaire Donald J. Trump, a man Obama considers “unfit to serve as president” — someone who can’t be trusted with his own Twitter account, let alone the nuclear launch codes. Perhaps only those incorrigible “cynics” Obama regularly chides from the bully pulpit could have predicted this would come to pass.

He has a long list of examples including these:

Throughout his second term, Obama increasingly governed by executive fiat. “I’ve got a pen, and I’ve got a phone,” he bragged, and he proceeded to use them to, among other things: pressure schools throughout the country to adopt national curriculum requirements Congress never authorized; promulgate new rules that nearly quadruple the number of workers eligible for overtime pay; force American power plants and, ultimately, electricity consumers to bear billions of dollars of costs in reducing greenhouse gas emissions, despite the fact that Congress has never voted to treat CO2 as a pollutant; issue regulatory “guidance” documents purporting to make the rules for nearly every school and workplace bathroom in the United States; and unilaterally amend the Affordable Care Act by ignoring clear statutory mandates and deadlines.

During his efforts to rewrite the Affordable Care Act on the fly, Obama even invented a presidential “power of the purse” and ordered the disbursement of billions of dollars in “cost-sharing” subsidies that Congress never appropriated. When IRS officials voiced doubt about the legality of those payments, they got the kind of strong-arm briefing David Addington, “Cheney’s Cheney,” specialized in during the Bush years. The dissenters were handed a secret memo rationalizing the move, told they “could not take notes or make copies,” and informed that the attorney general had declared the expenditures legal. Whatever the source of that authority might be, Obama officials couldn’t specifically identify it under questioning at a congressional hearing last July, though a top Treasury official volunteered: “If Congress doesn’t want the money appropriated, they could pass a law that specifically says don’t appropriate the money from that account.”

More than any recent president, Obama has embraced and, to some extent, legitimized the anti-constitutional theory that congressional inaction is a legitimate source of presidential power. It’s a theory future presidents will build upon. In the words of the University of North Carolina legal scholar William P. Marshall, “The genies of unilateral executive action are not easily returned to the bottle.”

As Healy’s piece shows, solidifying the imperial presidency is President Obama’s real legacy — contrary to what he sees his legacy to be. Democrats have only themselves to blame for all the powers President-elect Donald Trump will have when he is in office.

Veronique de Rugy is a senior research fellow at the Mercatus Center at George Mason University.

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