Obama asserts presidential powers he once spoke critically of

McClatchy NewspapersJune 21, 2012 

— President Barack Obama is starting to channel his inner Cheney.

For years, Obama talked about the limits on presidential power. Now, driven either by principle or political expediency, he’s working to build and maintain a powerful presidency that pushes the edge of what it can do, while often telling Congress and the courts to mind their own business.

In the last week alone, he refused a subpoena to share Justice Department emails with Congress, told courts he doesn’t have to justify his claimed power to assassinate suspected terrorists and decided to stop deporting certain illegal immigrants even though Congress has refused to enact a law to do that.

Those moves cap a slow buildup of executive branch power since Obama took office in January 2009. Some actions build on war powers seized by the administration of President George W. Bush and Vice President Dick Cheney. Some assert new domestic authority.

Taken together, they reinforce the strengthening presidential power that Cheney pursued ever since he served as White House chief of staff to Gerald Ford and watched Congress take power away from a presidency weakened by Vietnam and Watergate.

“Particularly with regard to national security powers, Obama is as vigorous in exercising those powers, and expanding some of them, as his predecessor,” said Gene Healy, the author of the book “The Cult of the Presidency: America’s Dangerous Devotion to Executive Power.”

At the White House, Press Secretary Jay Carney spoke Thursday of separation of powers rather than checks and balances, casting the decision to shield the Justice Department as part of the broader principle of presidential authority.

“It is his responsibility as steward of the executive branch to retain the capacity of this administration and every administration going forward to function appropriately and independently from the congressional branch of government,” Carney said.

“The assertion of privilege has to do with the absolute necessity of retaining the executive branch’s independence enshrined in the Constitution in the separation of powers to allow it to appropriately and independently . . . deliberate and respond to these kinds of inquiries.”

Obama started out more skeptical.

As a candidate in 2007, for example, he criticized Bush for using executive privilege to shield aide Karl Rove from congressional questions about politics in the Justice Department.

“There’s been a tendency on the part of this administration to try to hide behind executive privilege every time there’s something a little shaky that’s taking place,” he said then. “There doesn’t seem to be any national security issues involved. . . . I think the American people deserve to know what was going on there.”

This week, Obama asserted executive privilege to shield the Justice Department from a subpoena for emails, part of a congressional investigation into a possible political cover-up in the wake of the Fast and Furious gun scandal.

Last year, he rejected pressure to stop deporting the children of illegal immigrants, noting that Congress hadn’t yet approved the proposed DREAM Act, which would allow him to do that.

“Sometimes when I talk to immigration advocates, they wish I could just bypass Congress and change the law myself,” he said in Texas in May 2011. “But that’s not how a democracy works. What we really need to do is to keep up the fight to pass genuine, comprehensive reform. That is the ultimate solution to this problem.”

Last week, his administration announced that it would use prosecutorial discretion to stop the deportations of those young, illegal immigrants.

This week, his administration argued in a late-night court filing that it shouldn’t be required to reveal anything about its policy of targeting suspected terrorists abroad for death by drones, even if they’re U.S. citizens.

“We continue to have profound concerns with the power the administration is claiming and with the proposition that the president should be permitted to exercise this power without oversight by the courts,” said Jameel Jaffer, the deputy legal director of the American Civil Liberties Union.

“That the administration believes a power so sweeping should be exercised in secret is astounding.”

While Obama’s moves in the last week drew news media attention, others have been less noticed.

Earlier this year, he said he’d allow 10 states to stop obeying an unpopular education law as long as they agreed to new stipulations. The waivers from the No Child Left Behind act came as Congress has been unable to agree to a new national education law.

“It’s not simply that a waiver is granted, but that it comes with strings attached,” Healy said. “The administration as a condition of lifting some of the strictures will require certain actions that were never written into federal law. . . . The executive branch is essentially rewriting law with elements that never passed the legislature.”

The president also decided to stop defending the legality of another law, the Defense of Marriage Act, passed by Congress and signed into law by President Bill Clinton to stop gay marriage from spreading across state lines.

If Obama is asserting power for the executive branch, the legislative branch Thursday remained divided about what if anything it could or should do.

“That’s what presidents do,” said Rep. Elijah Cummings of Maryland, the ranking Democrat on the House Oversight and Government Reform Committee. “Trying to defend DOMA, that’s certainly within the discretion of the president and the attorney general. Immigration, that’s one where nobody was doing anything. Everybody agreed something needed to be done but nobody was doing anything. So I think it was appropriate for the president to step up.”

Sen. Lindsey Graham, R-S.C., sees a trend. “I think the narrative is building that they’re using executive power in a way that is uncomfortable to a lot of people,” he said.

In addition to the other recent examples, he noted Obama’s use of “recess” appointments to get nominees into the executive branch when the Senate objects but is arguably not in session. But Graham said it was up to the people, not Congress, to change that.

“The ultimate corrective tool in a democracy is not the opposite party as much as it is the people,” he said. “If they think you’re getting out of bounds, they’ll whack you. We’ve been whacked. He’s going to get whacked.”

Email: sthomma@mcclatchydc.com, wdouglas@mcclatchydc.com; twitter @stevethomma, @williamgdouglas

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