Should Obama Seize Constitutional Power?

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A thought experiment: How the president could maximize his imperial authority by invoking the Constitution -- just like his predecessors 

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My last two posts have concerned my thought experiment in which Obama, faced with a refusal by Congress to raise the statutory debt limit, declares the statute unconstitutional and refuses to observe it. This one, I promise, is the last.

The experiment is not a prediction; but it does offer a useful chance to talk about some of the conundrums of constitutional text (see my last post), executive-congressional relations, and the crucial question of who interprets the Constitution -- especially in relation to issues that will probably never come before the Supreme Court.

Executive officials must make constitutional decisions all the time -- for example, does the president have legal and constitutional authority to launch a military operation against Osama  bin Laden in Pakistani territory? -- knowing their decisions won't ever be reviewed by judges.  One of the questions they must answer is whether to obey statutes that purport to limit the president's authority under Article II. It's no small decision for a president to refuse to follow a statute; but by the same token, it's no small thing to obey a law that oversteps Congressional bounds.

I'm not sure I buy the executive-hawk argument; but sauce for the Bush goose, the administration might argue, should be sauce for the Obama gander.

(The Supreme Court just this week agreed to referee such a battle. The case of M.B.Z. v. Clinton tests a statute ordering the State Department to record that American citizens born in Jerusalem are born in "Israel," though official U.S. policy doesn't recognize Jerusalem as part of Israel. Both Bush and Obama administrations have refused to issue the birth certificate as the statute requires, on the grounds that the Constitution gives the executive branch the sole authority to recognize foreign governments and determine their jurisdiction. The lower court held that the dispute was a "political question" -- meaning one that courts could never resolve.  The Court will reconsider that holding; if it finds the question "justiciable" -- meaning a court can answer it -- it may still hold that the executive was right to disobey the statute.) 

To me, one interesting thing about my imagined scenario -- Obama defying the debt limit and ordering Geithner to borrow if needed to repay America's debts -- is how closely it actually fits recent practice by Republican presidents. For the past three decades, conservative theorists have insisted that the executive branch is the rightful place for every federal power except those few given exclusively to Congress. That was the Bush administration's constant refrain during the early years of the War on Terror. In one of the infamous "torture" memos during the weeks after September 11, Office of Legal Counsel official John Yoo breezily wrote that "the constitutional structure requires that any ambiguities in the allocation of a power that is executive in nature -- such as the power to conduct military hostilities -- must be resolved in favor of the executive branch." That meant, to Yoo, that the president could attack any nation he chose, on his sole determination that it posed or might pose a threat. Congress could authorize him to attack another country, but could not forbid him to do so.

Surely the power to safeguard the national credit is "executive in nature," too. It is commanded by the Constitution, and it concerns the national interest as fully as does military action.  Congress can authorize the borrowing of funds to repay the debt; but can it prevent the president from doing so by refusing to act?

I'm not sure I buy the executive-hawk argument; but sauce for the Bush goose, an administration lawyer might argue, should be sauce for the Obama gander. If the Bush White House could, on its own authority, judge that the Detainee Treatment Act was unconstitutional when applied to limit the president's authority to employ torture, why shouldn't the Obama White House make the judgment that the statutory debt limit is unconstitutional if it requires "question[ing]" the national debt?

This is how the imperial presidency came to be, and why it keeps growing. As historian Daniel Walker Howe notes in his marvelous book What Hath God Wrought: The Transformation of America 1815-1848, divided government became a persistent feature of American politics during the administration of John Quincy Adams; it was Adams's successor, Andrew Jackson, who tackled the problem by asserting sweeping authority for the president to act regardless of Congress when he in his sole judgment saw fit. In the American system, coalition government and shared responsibility are difficult; executive power grabs are quick, clean -- and usually successful. 

Once power flows to the executive, it rarely flows back. Sen. Barack Obama was a persistent critic of George Bush's high-handed style; President Obama has chosen to follow that style in puzzling ways. (I am still scratching my head over his decision not to ask for ratification of the Libyan intervention.)  

This has long formed a classic vicious circle in American politics. When Congress behaves childishly, the president acts. Being shunted to one side infantilizes Congress; the institution acts even less responsibly; the president claims new authority on the grounds that Congress can't function responsibly; impotent anger sparks new misbehavior, etc. 

That's a historical fact Republicans should ponder. They seem to believe they have Obama in a box during the runup to the debt-ceiling vote. Either give us our program through the back door, they seem to be saying, or we will wreck both the national credit and the recovery.

But national security hawks like to remind us that the Constitution is not a suicide pact. Presidents have used that logic in many ways; would it be totally perverse or surprising if this president adopted it now, if it seemed necessary to prevent economic catastrophe?  

I would really rather not see Obama making my imagined speech. Wouldn't both parties, the Constitution, and the country be better served if both sides work out a responsible deal to support the national credit while tackling our long-term problems like grownups?

Image credit: Reuters/Jim Young; Jim Bourg

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore, and is the author of American Epic: Reading the U.S. Constitution.

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