Magazine March 11, 2013, Issue

The Presidency Redefined

(Roman Genn)
Obama weakens it where it should be strong and strengthens it where it should be weak

There is a flaw at the very heart of Barack Obama’s presidency. In the 1960s and 1970s, Hollywood created a new type of film protagonist — the anti-hero. He played the leading role, but was the opposite of a hero. Barack Obama is becoming the anti-president: He is acting on a vision of his office directly at odds with the Framers’.

The recent leak of the Justice Department white paper on the targeted killing of Americans by drone warfare is the latest indication of the president’s failure to understand the constitutional purpose of his office. Some critics claim that the memo shows that the president is attempting to seize an unchecked, unilateral power to deprive citizens of their most fundamental right: the right to life. Some members of Congress have even unwisely proposed to rein in these attacks on Americans who have joined al-Qaeda, and to establish a special federal court to issue the functional equivalent of death warrants. (President Obama broadly endorsed this idea of judicializing military strikes in his State of the Union address. “I will continue to engage with Congress to ensure not only that our targeting, detention, and prosecution of terrorists remains consistent with our laws and system of checks and balances, but that our efforts are even more transparent to the American people and to the world,” he declared.)

But the white paper on drone strikes is most important for what it reveals about Obama: his desire to weaken his own office’s ability to fulfill its constitutional duties. Eighteenth-century Americans understood the executive’s powers to focus on two main functions: the protection of national security and conduct of foreign relations, and the execution of the laws. “Energy in the Executive is a leading character in the definition of good government,” Alexander Hamilton wrote in Federalist 70. “It is essential to the protection of the community against foreign attacks. It is not less essential to the steady administration of the laws.” Most important of all, commanders-in-chief — since the time of the Framing — traditionally have managed war. “Of all the cares or concerns of government,” Hamilton wrote in Federalist 74, “the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand.”

Choosing enemy targets and selecting weapons systems thus fall squarely in the executive’s docket. Presidents have generally followed the laws of war, which require that militaries discriminate between civilians and combatants and use proportional force to achieve their missions. But now the administration has said, in a Justice Department white paper, that, for the first time in American history, White House advisers are choosing targets in war using criteria developed in the criminal-justice context: whether the enemy’s due-process rights allow the use of force, whether capture is feasible, and whether an attack on the United States is imminent.

Civil libertarians of the Left and the Right might find comfort in the fact that Obama and his advisers worry about terrorists’ rights before they authorize a drone strike. But they should concede that none of it — despite appearing in a Justice Department paper — is required by the law. Under the traditional laws of war, members of the enemy forces are legitimate targets at any time, unless they have surrendered or can no longer fight owing to injury. It does not matter whether they are generals or privates, or whether they are continually planning attacks or pose an “imminent” threat to the United States, as required by the Obama administration. In World War II, for example, the U.S. bombed military targets in Germany and Japan far behind the front lines; the only legal question was whether the U.S. could also bomb civilian targets to stop war production or weaken the enemy’s will to carry on. It does not even matter whether the enemy is American. In past wars — especially the Civil War, during which President Abraham Lincoln believed all Confederates remained U.S. citizens — some Americans have joined the enemy and have received the same treatment as their brothers-in-arms.

By introducing law-enforcement concerns such as imminence, capture, and due process into military decisions, President Obama weakens his office. These criminal-justice notions not only slow down the military decision-making process, but also invite the judicialization of war. Obama’s drone policy resembles the abortive September 10 terrorism policies he announced at the start of his first term. Soon after taking office, he ordered Guantanamo Bay shut down and terrorists transferred to a mainland prison. He halted military trials of terrorists and announced that al-Qaeda leaders such as Khalid Sheikh Mohammed, the mastermind of the 9/11 attacks, would be tried in federal courts in downtown New York City. His Justice Department read Miranda warnings to captured al-Qaeda operatives, such as Umar Abdulmutallab, who tried to blow up a Northwest airliner over Detroit on Christmas Day 2009.

#page# Transferring detainees to the courts effectively gives the judiciary the final say over terrorism policy — just as judges set the rules for police conduct. Congressional opposition, and the intrusion of the reality of the security threat, led President Obama to back away from this approach and retain much of the framework that had been established by President George W. Bush (in whose administration I served). But the president’s support of legislation that would involve the courts in the question of drone strikes marks a new turn toward the mistaken idea that terrorism is just another law-enforcement matter.

In his foreign policy, Obama has avoided hard decisions. The administration waited for three weeks for the United Nations to approve intervention in Libya, resulting in greater risks to Western militaries than would have existed if Qaddafi had been deposed sooner, greater death and destruction among the Libyan people, and a prolonged civil war whose unsecured weapons have spilled into neighboring countries, such as Mali. Obama eventually ordered bombing runs in Libya in support of the rebels, which he shortly downgraded to command-and-control support for European air forces, but sent no ground troops and had no hand in influencing the post-Qaddafi regime: This was anything but the “energy” that the office demands. In Syria and Iran, the administration has failed to support popular movements that could topple those nations’ anti-American regimes.

Even as he restricts the executive’s freedom in the area where it counts most, Obama enlarges executive power in the area where it should count least. The Framers intended for issues concerning the domestic economy and society to remain under the control of the legislature, which has power to make laws, spend from the Treasury, and raise taxes, and at least one branch of which has always been directly elected by the people. The president would enter domestic lawmaking only with a limited veto power, designed to prevent Congress from running to extremes. So concerned were the Founders that Congress would bully the president that they insulated his election and pay from the legislature. But President Obama has been so eager to plunge into domestic policy that he has used the power of his office to undermine existing laws.

Rather than negotiate with Congress on the matter of immigration, Obama granted executive exemptions from immigration law to a large class of illegal immigrants. Rather than seek legislative repeal of the Defense of Marriage Act, which clashed with his newfound support for gay marriage, the president ordered his Justice Department to stop defending the law in court. He gutted by executive order the work requirements of the welfare reform that President Clinton signed into law after Congress had passed it with overwhelming bipartisan support. Enforcing the drug laws has gone by the wayside, with the Justice Department declining to prosecute marijuana possession in states that have legalized weed. President Obama’s unwillingness to “faithfully execute” the laws — one of the president’s core responsibilities — is unprecedented in the history of the office.

President Obama has also intruded upon the legislature by making recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau while the Senate formally remained in session. He thus arrogated to himself the right to determine whether the Senate’s proceedings are in fact its proceedings. Last month, the D.C. Circuit Court of Appeals recognized this power grab for what it is and nullified the appointments to the NLRB, implying that the appointment to the CFPB was unconstitutional as well. The case,Noel Canning v. NLRB, reined in a presidential power that had been traditionally exercised for 190 years — by rejecting not just Obama’s unconstitutional moves, but all recess appointments that do not occur in the break between the first and second sessions of a Congress (which usually occurs between its first and second years). His successors will suffer the consequences.

Conservatives may feel reluctant to criticize Obama’s understanding of executive power. Modern conservative thought has depended on the presidency to check the growth of the administrative state, and much of modern conservative jurisprudence in the area of the separation-of-powers doctrine has had a similar goal. Powerful presidents can revoke burdensome rules, fire regulators, and bring greater coherence and uniformity to the activities of the government. But such efforts to tame the beast that was unleashed by the early-20th-century progressives have yet to succeed. Conservatives would be more consistent in their quest to rein in the administrative state if they forswore the vigorous use of executive power. It may be possible to beat liberals at their own game — and in the process to repudiate their interpretation of the Founders — by seeking a sounder rights-based jurisprudence. This would require that federal judges once again consider whether they can enforce the Constitution’s economic rights, restore the states as the primary regulators of daily life, and demand that the administrative state act not just rationally, but in the public’s best interests.

Using something as momentous as the presidency for a purpose opposite the one for which it was designed not only will be ineffective, but will also cause considerable harm. Mr. Obama is weakening his office, the Constitution, and the nation. Only future generations will know how long it took to reverse the damage.

– Mr. Yoo is a law professor at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute. He served in the Bush Justice Department from 2001 to 2003 and is the author, most recently, of Taming Globalization.

John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley, a visiting scholar at the American Enterprise Institute, and a visiting fellow at the Hoover Institution at Stanford University.

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