Last week, the House Judiciary Committee held hearings on “executive overreach”. Critics of the president are right to raise questions about President Obama’s use of power, but they are asking the wrong questions, chasing red herrings, and suggesting quixotic remedies like the “Stop This Overreaching President” (STOP) resolution, which would direct the House to initiate litigation seeking to “require the President to comply with the law”. The STOP resolution cites President Obama’s supposed “waiver of the welfare work requirement”, his decision to defer deportation for some undocumented immigrants brought to the U.S. as children, and his decision to delay the so-called employer mandate under the ACA as examples of presidential overreach. There are two obvious problems here. First, none of these actions is as described—Obama did not “waive the welfare work requirement. Second, each of these decisions is supported by constitutional and/or statutory authority.
Unfortunately, the STOP resolution distracts attention from legitimate concerns about the Obama administration’s exercise of power. When President Obama took office, he declared that his administration would create “an unprecedented level of openness in government.” After beginning his second term in office, President Obama claimed that “this is the most transparent administration in history”. Critics of the Bush administration hoped that Obama would restore the rule of law.
It is difficult to square these assertions and hopes with the Obama administration’s record. The Obama administration has relied on the misconceived state secrets privilege to seek dismissal of cases that alleged serious government misconduct in the areas of extraordinary rendition, warrantless surveillance, and the targeted killing of U.S. citizens. One recurring problem is the administration’s refusal to provide legal justification for unilateral actions it takes.
The Bush administration was notorious for taking controversial actions based on secret law, including Office of Legal Counsel opinions that were hidden from the public for years. When the opinions were eventually made public, they revealed breathtaking claims of essentially unchecked power based on the “unitary executive” theory. As described by lawyers in the Bush administration, the unitary executive theory claimed inherent power for the president to act in the name of national security. As Louis Fisher, a critic of inherent power, has explained, “inherent power poses serious risks to constitutional government.” Inherent power is dangerous, as Fisher explains, because it is difficult to define or limit. Inherent presidential power is power deemed so central to the office that it cannot be limited by the other branches of government. Advocates of inherent power argue that presidents have the authority to set aside laws that infringe on executive power, as defined by the president. This view, as Fisher points out, cannot be reconciled with constitutional checks and balances or the rule of law. During the Bush administration, claims of inherent power were used to justify plenary presidential power over all decisions involving the use of military force, as well as purported presidential authority to set aside laws prohibiting torture and warrantless surveillance. Since these claims were initially asserted in secret memoranda, there was no opportunity for members of Congress, scholars, or the public to challenge them.
The lesson that should have been learned, and that President Obama claimed to have taken to heart, was that secret law is unacceptable, and inherent power is incompatible with constitutional democracy. Unfortunately, Obama has followed Bush’s pattern in this area, most notably in the area of national security. The Obama administration has claimed the power to kill U.S. citizens abroad who are suspected terrorist leaders without providing any trial or hearing to substantiate the claims. There is an Office of Legal Counsel memo that claimed to identify legal authority for this extraordinary program, but the memo has not been publicly released. A Department of Justice white paper, sometimes described as a summary of the secret OLC memo, suggests – though of course we cannot know for sure without seeing the OLC memo itself—that the administration may be relying in part on inherent power to justify the targeted killing program.
The pattern extends to the domestic sphere. During last month’s State of the Union address, President Obama announced his intention to unilaterally raise the minimum wage for federal contractors. However, he did not explain what legal justification he relied on in taking this action. It seemed possible that Obama was relying solely on a claim of statutory authority, dating back to a 1949 procurement law. Although such a claim would be strained and difficult to justify, at least it would not be a claim of inherent power. Of course, without knowing how the action was justified, one could only speculate (and hope).
In congressional testimony given just after the State of the Union Address, Attorney General Holder fielded questions about the claimed legal basis for Obama’s decision to raise the minimum wage for federal contractors. His testimony suggested the administration was not relying on any claim of statutory authority. Holder explained that “I think there’s a constitutional basis for it. And given what the president’s responsibility is in running the executive branch, I think that there is an inherent power there for him to act in the way that he has.”
This is a disturbing argument for an Attorney General, the nation’s chief law enforcement officer, to make. Attorney General Holder is speaking the language of the unitary and unrestrained executive. Based on President Obama’s rejection of the Bush administration’s reliance on this deeply flawed doctrine, which essentially places the president outside the rule of law, one would reasonably have expected this theory of executive power to have been consigned to the dustbin of history. Holder’s testimony demonstrates its contemporary acceptance by the Obama administration, which already has too many parallels to the discredited doctrines of George W. Bush. Although President Obama issued a February 12 executive order citing statutory authority as a basis for raising the minimum wage for federal contractor, the order also relied on “authority vested in [the] President by the Constitution”. In light of Holder’s reference to inherent power, President Obama ought to make clear precisely what authority he relied on, and whether he believes inherent power is available to him.
Obama still has a chance to deliver on his promise to restore the rule of law. But it is high time for him, and his administration, to make good on that promise. A good start would be expressly rejecting the unitary executive theory and inherent power while making clear what legal justifications are relied on for unilateral actions ranging from the minimum wage hike to targeted killing. If it turns out that the administration has, as Holder suggested, relied on inherent power as a basis for action, it ought to repudiate that approach. If the administration either continues to rely on secret legal opinions or endorses inherent power and the unitary executive theory, it will be clear that this is a presidency, like Bush’s, that does not respect the rule of law.
Chris Edelson is Assistant Professor in American University's School of Public Affairs. His research focuses on presidential power and other questions of U.S. constitutional interpretation. His first book, Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror was published in 2013 by the University of Wisconsin Press.
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