How The Growth Of Executive Power Is A Threat To Representative Government


ALEXANDRIA, VA — In recent days, the Obama administration appears to be in the process of dramatically expanding executive power, threatening our system of representative government.

Whatever the merits of the return of Sgt. Bowe Bergdahl from Afghanistan turn out to be, it seems beyond question that President Obama bypassed a federal law requiring the Pentagon to notify Congress a month before he transferred the five Taliban detainees to complete the deal.

Senator Dianne Feinstein (D-CA), the chairwoman of the Senate Intelligence Committee, noted that when conversations between the Obama administration and Congress about the potential swap were held 18 months earlier, “[T]here were very strong views, and they were virtually unanimous against the trade.”

The administration argues that it had a right to ignore the law because of reports regarding the risk of harm to Bergdahl. Jack Goldsmith, a Harvard Law School professor who was a senior Justice Department lawyer in the Bush administration, called this interpretation unconvincing. He noted that elsewhere in the same act, Congress imposed requirements that contained explicit exceptions.

Abuses of executive power are, of course, bipartisan. When George W. Bush’s legal team made frequent claims that the commander-in-chief could bypass statutory restrictions at his discretion, it echoed the current Obama team by saying it would “construe” what appeared to be legal mandates as merely advisory or as containing unwritten exceptions.

Mr. Bush made many of those claims in signing statements. He used that device to advance sweeping theories of executive power and challenged about 1,200 provisions of laws, more than twice as many as all previous presidents combined, including a ban on torture and oversight requirements in the Patriot Act.

During the 2008 campaign, Obama, then a senator, called Bush’s practice an “abuse,” saying that he himself would use the device with more restraint. He then defined restraint as not issuing statements that would “nullify or undermine Congressional instructions.” After he became president, he issued a memorandum that The New York Times described as “subtly relaxing that standard, instead defining restraint as invoking only well-founded legal theories.”

While Obama has not issued as many signing statements as George W. Bush, he employs them in much the same way. In December, he issued a signing statement about the 30-day notice statute. It said that in certain circumstances, other restrictions on transfers “would violate constitutional separation of powers principles”–and that if those circumstances arose, “my administration will implement them in a manner that avoids Constitutional conflict.”

By now acting on that claim, critics say, Obama has taken another step toward practices of his predecessor that he once criticized.

In 2006, a 10-member panel of lawyers and legal scholars assembled by the American Bar Association (ABA) declared, “The President’s Constitutional duty is to enforce laws he has signed into being unless and until they are held unconstitutional by the Supreme Court or a subordinate tribunal. The Constitution is not what the President says it is.”

As president, Obama has issued close to 30 signing statements. In the Defense Authorization Act alone, he challenged more than 20 sections of the law. Among the challenges have been assertions of his power to close Guantanamo Bay and to disregard whistleblower protections.

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This post originally appeared on Western Journalism – Informing And Equipping Americans Who Love Freedom

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