Executive Power Debate, Redux

Charlie Savage’s odd article in yesterday’s New York Times prompted another exchange in the ongoing conversation about whether the Obama Administration’s assertions of executive power can be meaningfully distinguished from those of George W. Bush. Savage’s article is headlined in such a way, and otherwise seems to suggest that Obama’s recent reliance on executive orders to accomplish various policy changes (in, for example environmental regulation) is analogous to the Bush Administration’s claims that it could exercise executive power to change various policies and laws in the counterterrorism realm. (Savage writes, for example: “As a senator and presidential candidate, [Obama] had criticized George W. Bush for flouting the role of Congress…. But increasingly in recent months, the administration has been seeking ways to act without Congress.”)

Marty Lederman does his usual lovely job at Balkinization of explaining why the equation of these practices as similar in their views of executive power is wrong. Critically, for example, the most troubling assertions of executive power in the Bush Administration – for example, the power to torture despite federal laws prohibiting it – were truly claims of unilateral authority. That is, the claim that the President could order torture even when Congress has said it’s illegal. The Savage article, in contrast, is almost entirely focused on Obama’s use of executive orders to carry into effect powers that Congress has delegated to the President to use. That is, essentially the opposite behavior.

Jack Goldsmith nonetheless views the Savage piece as fodder for his book’s claim that executive power invariably expands over time, and that while Obama maybe held back in his first few years in office, even Obama is now seeing the light, as it were. As I’ve written in some detail elsewhere, there are a set of ways in which the Obama Administration has recognized constraints on its power that the previous administration did not. Some examples. The Obama Administration’s early executive order on interrogation, still in effect, recognizes the binding applicability of Common Article 3; the Administration has argued that international law should inform the interpretation of its detention power (a view to which the D.C. Circuit has, remarkably, not deferred); the Administration won an amendment to the Military Commissions Act (MCA of 2009) entitling detainee-defendants to raise Geneva Convention-related defenses in the course of their trials (a set of claims the MCA of 2006 had barred); the State Department has announced an intent to seek to ratify Geneva Additional Protocol I. Perhaps most significant, though, the Congress has sought to impose remarkable constraints on the President – I’m not aware of any historical precedent – including the prohibition on transferring Gitmo detainees to the United States for prosecution. And the President has, in fact, complied with them.

None of this is to suggest I’m a fan of everything the administration has done in this realm, or even that it’s clear exactly what the President thinks is the scope of his power under Article II. (Here, for example, I raised questions about the scope of Article II power the Obama Administration is asserting in its targeted killing programs.) Rather, it’s to suggest that Jack’s descriptive claim that executive power simply and inevitably expands over time I think ignores the various ways in which that has not been true. If I were trying to describe what’s happened in the past four years, I’d say, more modestly, that sometimes, some executive powers expand, and sometimes, some others do not. Where does this get us? Well, at least to the point of asking a better question. Like why does power sometimes expand, and why, more interestingly, does it sometimes not?