I highly recommend that David Bernstein’s new book, “Lawless: The Obama Administration’s Unprecedented Assault on the Constitution and the Rule of Law.” David’s book offers an insightful analysis of how President Obama’s presidency has seen an unprecedented expansion of executive power, and an unparalleled disregard of Congress and the separation of powers. Despite the promises to reverse the excesses of the Bush Administration, President Obama has gone much farther. David’s book is essential reading to understand what went wrong the last 7 years.
To help explain Lawless book, I offered 10 questions to David, who was kind enough to answer.
1. What were your expectations for President Obama in 2009 when he took office largely on the promise of reversing President Bush’s positions towards executive power?
I expected there would be some slippage, because it’s natural for a president to have a broader view of presidential power once he’s in office. But I didn’t expect such a broad reversal of his campaign positions, both because I thought he was sincere about them, and because those positions, especially with regard to presidential war powers, were important to some of his core liberal constituencies.
2. What was your first hint that something that President Obama may not live up to those expectations?
I think Libya was the first thing that really struck me, because it involved such brazen disregard for the law, and such a direct contradiction of what Obama himself had said in writing was his understanding of the scope of the president’s war powers. I’m sure there were earlier hints, but in the early days of the administration I was busy with a baby and a book manuscript (Rehabilitating Lochner), so my ability to focus on how the administration was handling the separation of powers was limited.
3. How do you explain the disconnect between what candidate Obama promised, and what President Obama has done?
I think candidate Obama sold the electorate a bill of goods; Obama was never a sincere civil libertarian, and was never really interested in reining in executive power, these were just positions he took for campaign purposes, in particular to wrest the Democratic nomination from Hillary Clinton by appealing to the liberal Democratic base.
4. During the Bush Administration, the law professoriate lambasted the President’s attorneys, and charged them with rubber-stamping everything from torture to illegal wars. Many of those same professors took jobs in the Obama Administration. Have the Obama lawyers provided a constitutional check?
Sort of. Instead of asserting broad theories of constitutionally mandated executive power like John Yoo did, they have looked for barely plausible legal rationales to allow Obama to do what he wants to do. For example, instead of arguing that the War Powers Act is unconstitutional, Harold Koh argued that bombing Libya doesn’t constitute hostilities, though he took precisely the opposite position with regard to Reagan’s much, much, less intensive bombing of Libya twenty-five years earlier.
I think the Obama people think they are doing everyone a favor by not establishing broad precedents in the foreign affairs arena that Republican presidents can use. But making up dubious rules for the current president violates the rule of law. I disagree with Yoo on executive power, but at least his theory of it must be consistent across presidents, and therefore can’t be seen as simply manipulating the law to serve the incumbent administration. Indeed, to his credit John has been consistent in applying his theories to Obama administration military actions. It strikes me that the Obama administration lawyers have invented narrow and often bizarre rationales for presidential unilateralism precisely so they can avoid such consistency. It’s also worth noting that Obama has sometimes ignored his own lawyers at OLC and elsewhere when they tried to restrain his actions. Attorneys can’t provide a constitutional check if the president ignores their advice.
Finally, some Bush administration officials threatened to resign if Bush proceeded with some of the more aggressive legal theories some of the lawyers were pushing. Obama has pushed the envelope in a variety of ways, but I haven’t heard of any resignations, actual or threatened.
5. Explain the constitutional infirmities of the so-called “Czars”? How are these different from many other administration officials who do not need to undergo Senate confirmation?
The distinction between high-level advisors (who don’t require confirmation by the Senate) and principal officers (who do) is often lost in discussions of presidential czars. I limit my definition of “czar” to an individual who is not confirmed by the Senate and exercises final decision-making authority. A czar actually dictates or controls policy or the enforcement of laws and regulations. This may include controlling budgetary programs, administering or coordinating a policy area, or otherwise making or enforcing binding rules and regulations. It is these “czars,” and not mere advisors (no matter how influential), whose positions violate the Constitution, because they should be considered “principal officers” who need to be confirmed. George W. Bush had been by far the most prolific president in evading Senate confirmation and Congressional oversight hearings by appointing czars, but in his first term President Obama outdid Bush by a wide margin.
6. The President has often explained that gridlock, and an intransigent Republican Congress, has necessitated the use of executive power? Is this accurate? Should Republicans bear any blame?
We certainly have gridlock. But when the president’s supporters talk about gridlock, they mean “Republicans in Congress are not willing to go along with the president’s agenda.” But why does the president get to set the agenda? In our constitutional system, unlike parliamentary systems, the legislative branch is supposed to set the agenda. Other than using the bully pulpit, the president is limited to exercising his veto power (or not). Given the way our system is structured, if the president and Congress are at odds it’s more accurate to say that the president is responsible for gridlock. In the popular imagination, the president “runs” the government as if he’s a prime minister, so Congress gets more blame than it should. Popular conceptions of how the government works are at odds with the actual constitutional structure, and that’s a real problem. But the short answer is, there is nothing in the Constitution that suggests, implies, or even hints that the president’s power expands because Congress won’t pass the legislation he advocates..
7. How do you think President Obama’s history as a constitutional law lecturer at the University of Chicago has affected his understanding of his constitutional duties?
Obama taught Fourteenth Amendment related classes. There seems little if any evidence that he’s ever been interested in separation of powers or federalism, except to use the former as a campaign issue in 2008. I suspect he sees these considerations primarily as potential barriers to the progressive policies he advocates, with little if any actionable substantive content.
8. What do you make of the Presidents numerous comments directed at the Supreme Court, while the two big Obamacare cases were pending–NFIB v. Sebelius and King v. Burwell?
Presidents traditionally refrain from commenting on pending SCOTUS cases to avoid giving the impression they are trying to pressure or influence the Justices. That seems like a wise policy.
9. What do you think the biggest legacy will be for the Obama Presidency with respect to executive power? How will he be remembered in 50 years?
Unfortunately, I think his presidency is likely be remembered as the tipping point where executive power really got out of control. No president has asserted (and bragged about asserting!) such broad executive power across such a wide range of foreign and domestic matters, ignoring both the laws he’s supposed to execute and longstanding norms about when Congress needs to be consulted. The question is whether in fifty years we’ll look back and say “thank God there was a counter-reaction” or whether we’ll say “and that was the beginning of the end of the separation of powers.”
10. For the last question, do you think the winner of the 2016 election–either Republican or Democrat–will effect any meaningful changes from the policies of the Obama Administration?
Unfortunately, the trend has been that new presidents pocket whatever powers their predecessors gained, and then expand them further. I hope that doesn’t turn out to be the case, but I don’t have much reason for that hope. Liberal bloggers are praising Clinton precisely because they expect she won’t care about the rule of law, and the GOP frontrunner for the last several months seems to thrive on the fact that Republicans want their own narcissistic unilateralist in the White House.
These are very serious times. I thank David for his insights.