More on Executive Power

by Deborah Pearlstein

My earlier post on executive power generated some good, thoughtful comments. I wanted to highlight Charlie Savage’s in particular (he’s the author of the New York Times article I’d mentioned, please see his comment in the section below), and take a moment to offer a few thoughts in response.

Charlie’s concerns are basically twofold. The first is that I’m unfairly characterizing his article by suggesting that it seems to analogize Obama’s assertions of executive power to the claims of executive power made by the Bush Administration in the context of national security. He of course is right that his article at one point does note the important distinction between Bush’s claims and Obama’s. Despite this, Marty Lederman and the Times’ own Andrew Rosenthal and I all independently seemed to read the piece in much the same way – i.e. as suggesting that there was something comparable in Bush’s embrace of executive power and Obama’s, and that this might have something to do with national security. Why did I read it that way? I think it had to do with context and emphasis.

Here’s what I mean. Having read The Times (and other publications) on the topic of executive power in recent years, it seems to me difficult to compare the administrations’ respective approaches to executive power writ large while ignoring the context in which the comparison exists – i.e. a mammoth decade-long debate about executive power in national security. Neither the article’s headline nor the opening 8-9 paragraphs of the article do anything to suggest that by “executive power” the article intends to exclude or somehow except questions of national security from the general thesis that Obama had changed his views on executive power. On the contrary, the passage from the article that I quoted in my original post seemed to me to reinforce the idea. “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.” My recollection of the campaign – admittedly far from perfect so I’ll welcome corrections on this account – is that Obama’s central criticism of Bush’s use of executive power was to do with Bush’s use of executive power in matters of national security. In particular, on the torture and surveillance issues Charlie’s article mentions. If I’m right about this (the nature of Obama’s campaign criticisms of Bush), and Charlie’s right that he didn’t mean to touch on executive power in matters of national security, then I’m not sure what relevance there is to mentioning Obama’s campaign criticisms of Bush in the article.

Which brings me to Charlie’s second concern – that I might have inadvertently linked to the wrong Lawfare post in referencing Jack Goldsmith’s take on the article. Actually, I linked to the Goldsmith post I intended – namely, Jack’s first post about the Savage article, which read in its entirety:

Charlie Savage has a story today about how the Obama administration, stymied in Congress and seeking ways to accomplish policy goals, has “increasingly in recent months . . . been seeking ways to act without Congress.” This was a predictable turn of events and one that, as Savage’s story notes, follows a standard historical pattern.

Jack writes of course for the Lawfare blog – a blog entirely devoted to questions of law and national security. Suggesting he seemed to think the article had some bearing on executive power in that realm as well. Indeed, he saw the article as supporting one of the central theses of his recent book (and regular public talks) – namely, that it is a standard historical pattern for presidents to seek to expand their power in matters of national security. It was this claim I was responding to – arguing that it was descriptively problematic – in the latter paragraphs of my earlier post.

So what would I have done differently? (I hesitate here, this is after all why I’m a law professor and not a journalist.) But I might have led the article with a sentence that made clear the very limited category of “executive power” the article actually engages. And as a reader, I might have been interested in a better historical understanding (by which I mean a quote from a campaign speech or platform or the like) of how Obama’s use of, say, executive actions involving administrative agencies, actually reflects a change in his views of power, rather than just a difference in tactical approaches pretty much every president has embraced once they’ve lost a majority of the Congress. I’m not sure the piece would have been quite as newsworthy so framed. But I guess I think it would have been clearer.

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