Is Obama Exchewing Executive Power, Or Just Redirecting It?

Radley Balko is justifiably happy that Obama is chucking the the theory that the President can detain people indefinitely at his whim:

President Obama yesterday eliminated the most controversial tools employed by his predecessor against terrorism suspects. With the stroke of his pen, he effectively declared an end to the "war on terror," as President George W. Bush had defined it, signaling to the world that the reach of the U.S. government in battling its enemies will not be limitless.While Obama says he has no plans to diminish counterterrorism operations abroad, the notion that a president can circumvent long-standing U.S. laws simply by declaring war was halted by executive order in the Oval Office.

Key components of the secret structure developed under Bush are being swept away: The military's Guantanamo Bay, Cuba, facility, where the rights of habeas corpus and due process had been denied detainees, will close, and the CIA is now prohibited from maintaining its own overseas prisons. And in a broad swipe at the Bush administration's lawyers, Obama nullified every legal order and opinion on interrogations issued by any lawyer in the executive branch after Sept. 11, 2001.

It's worth emphasizing again here these steps Obama's taking effectively limit his own power. That's extraordinary.

But here is my cynical side coming out:  It is easy to limit your own power in areas in which you have no desire to exercise it.  Obama is doing great work here that needs to be done, but he is also not really giving up anything he cares to have.  I could just as easily have written a story that said that Bush took brave steps to limit the power of the executive branch over CO2 emissions.

When Bush wanted to listen to phone conversations or to hold people incommunicado for years, he could have gone to Congress to seek such authority, or used the authority he already had but which was (rightly) limited by oversight from the judiciary.  But terrorism was "too important" to bother with that stuff, so he did it by executive fiat.

So the real test, in my mind, is to see Obama's attitude towards executive power in an area where he really wants to get something done, and might not have the patience to wait for Congress.   Obama is a different kind of guy, right?  He would never expand executive power and short-circuit Congress just because he was in the hurry for something, would he?

President Barack Obama signed an executive order to force the auto industry to produce more fuel-efficient cars, an act he says will begin a new era of global leadership for the U.S.

I thought this was particularly clever rhetoric for continuing to gut the 10th Ammendment.

"The days of Washington dragging its heals are over," he declared, saying it should be easier for states to adopt tough fuel-efficiency rules. "My administration will not deny facts; we will be guided by them. We cannot afford to pass the buck or pass the burden onto the states."

We are not grabbing power here in Washington, we are just relieving them of the burden of governing themselves.

Update: By the way, I do believe the current version of the CAFE legislation gives the NHTSA and the EPA the ability to change the standard, so technically the administration has this power.  However, typically changes to regulations must go through a public disclosure, comment, and review process, with a number of key requirements like economic impact studies.  The reasons for these requirements is to try to offset (imprefectly) the enormous power Congress is delegating to the Administration in these regulations.

Per Wikipedia (yeah, take it with a grain of salt) the CAFE legislation says:

Congress specifies that CAFE standards must be set at the "maximum feasible level" given consideration for

  1. technological feasibility;
  2. economic practicality;
  3. effect of other standards on fuel economy; and
  4. need of the nation to conserve energy.

Obama, impatient with following the process (where have we seen that before?) cuts through it with an executive order.   No one has gone through this process of making these tradeoffs -- Obama and a few advisors picked a number and ordered it into being.  By doing so, he is in effect violating the spirit if not the actual text of the legislation in which the power to set CAFE standards was delegated to the agencies under him.

  • Mark

    And, the difference in assuming executive power is clear. The Constitution clearly gives the Execuitive such powers to protect the nation in times of emergency. George W. Bush did not assume these powers because he wanted to listen to people's telephone converstations, he did this because acquiring real time intelligence is incredibly important in protecting the American people.

    Compare this to the tone of Barrack Obama's grab at executive power. He simply believes that a policy should be followed and so ordered it.

    As President Lincoln stated when discussing the suspension of habeus corpus that should he let all of the laws of the nation be violated because he must follow a single law? In times of emergency the Executive must make decisions on how to best preserve American Liberty, even if in some cases he must temporarily reduce them.

  • Will H.

    What you suggest is to given rights granted by the constitution to US Citizens to all citizens of the world. The enemy combatants held in Gitmo were not US Citizens but was captured in armed conflict with this country and on foreign soil. They were not soldiers protect by the Geneva convention, they were not representing a country and under the rules of the Geneva convention they could have been summary executed. The one American that was caught was tried in the American Judicial system and is serving his sentence in an American jail and was granted all rights.

    The phone conversations in question were not domestic calls. They were calls originating in other countries and calling to the US. So the government is monitoring a known terrorist, in another country that call someone in the US and you want the government to hang up.

    Also congress did pass authorization

    Congress passed legislation, S.J.Res. 23, on September 14, 2001, authorizing the
    President to “use all necessary and appropriate force against those nations,
    organizations, or persons he determines planned, authorized, committed, or aided the
    terrorist attacks that occurred on September 11, 2001, or harbored such organizations
    or persons....”

    Bush acted in a way to protect the American people from an enemy that wanted to kill us all and did succeed in killing 3,000.

    Previous Presidents in time of war did far more than Bush.

  • Doug

    Why not cut the crap and issue one last executive order saying "I hereby outlaw any further executive orders"? If Mahatma Obama is so concerned about rolling back W's decrees and restoring the Constitution, it would be a logical move to demonstrate to all his serious intentions.

  • Che is dead

    Congress was briefed repeatedly on everything that Bush did. Bush requested and received legislative support for his terrorist programs, and he successfully defended those programs in the courts. The latest decision on wiretapping ( http://www.nytimes.com/2009/01/16/washington/16fisa.html?_r=1&hp) strongly suggests that Bush will prevail in this case as well.

    Time will tell what kind of "work" Obama is doing here. Bush managed to keep this nation safe after 9/11. I was more secure in my rights knowing that al-Qaeda and every other scumbag terrorist outfit had their hands full with the NSA and the USMC.

  • Art

    The Bush administration individual rights seriously. Bush repeatedly consulted Congress concerning surveillance and interrogation programs. He requested and received legislative support. <a href="http://www.nytimes.com/2009/01/16/washington/16fisa.html?_r=1&hp"<And he defended his programs successfully in the courts.

    Time will tell if Obama is doing "good work" here. Bush kept this nation safe following the attacks on Sept. 11. And I have been more secure in my rights while al-Qaeda has had to deal with the NSA and the USMC.

  • http://woodedpaths.blogspot.com/ DWPittelli

    And under the "Fairness Doctrine" (actually more of a fascist doctrine), the FCC (part of the Executive branch) will claim authority to effectively ban broadcast content which is "biased" -- in the eyes of the FCC. Any station broadcasting Rush Limbaugh would have to provide equal time for some money-losing Air America retread with no ratings; while no doubt NPR and Pacifica Radio will be sacrosanct.

  • Franco

    I'd like to see California be able to enact its own fuel economy standards for the state. Having spent much time in LA, I can tell you people there love their cars. I'd love to see what happens when they're all told they have to drive a Prius or spend $5,000 per car to modify it to meet the fuel economy standards (to the extent that is even possible which it isn't). Basically, I want to see them have to eat their own cooking. I say let 'em enact whatever goofy standards they want. The lunacy will never be exposed until it is never enacted for real.

  • Franco

    I'd like to see California be able to enact its own fuel economy standards for the state. Having spent much time in LA, I can tell you people there love their cars. I'd love to see what happens when they're all told they have to drive a Prius or spend $5,000 per car to modify it to meet the fuel economy standards (to the extent that is even possible which it isn't). Basically, I want to see them have to eat their own cooking. I say let 'em enact whatever goofy standards they want. The lunacy will never be exposed unless it is never enacted for real. To the extent the Big 3 are worried about this, they must not have ever been to California - they don't buy American cars out there.

  • Jim Collins

    I'm getting a good laugh over this. Obama has done nothing, he hasn't restricted his power at all. Think about it. What is an Executive order? If he changes his mind all Obama has to do is to write another executive order rescinding the first one and we are right back where we started.

  • Scott Wiggins

    "When Bush wanted to listen to phone conversations or to hold people incommunicado for years, he could have gone to Congress to seek such authority". The President did go to Congress...Congressional leadeship and cognizant intelligence committees were repeatedly briefed on extraordinary "legal" actions that were being taken. In essence, the President showed tremendous leadership in finding innovative ways to defeat terrorist and protect the American people. So now, we have another lawyer in the Whitehouse who will apply "juris prudence" to warfighting. Let's hope it works better than say our criminal justice system. Have you noticed that we have forfeited large portions of urban areas to criminals?