PrintMarch 7, 2011
The Powers of This President
Not all the powers President Obama has wielded or claimed seem clearly identifiable in the U.S. Constitution. Whether that is tolerable or even desirable appears to require consideration since the entire point of having a constitution is to limit government in the hope of fending off tyranny.
Our President wouldn't be the first to act extra-constitutionally; the pattern goes far back into U.S. history. The famous slippery slope describes that history; earlier events made smaller blips on the power horizon and later ones loom larger. Sometimes, the Supreme Court has stepped in, as exemplified by Presidents Roosevelt and Truman.
President Obama though, may have outdone any of his predecessors in exerting such powers and in avoiding much juridical or public reaction in so doing. In effect, if that observation is correct, the Constitution might be decreasingly interesting history.
Some of the actions we'll examine have occurred with the formal support of a compliant Democratic Congress; others have been done by the President or his officers on their own.
The Constitution provides the President these powers:
- To command the military (but not to declare war).
- With Senate consent, to appoint U.S. officials and judges.
- To appoint officials created in law as the law provides and to commission officers.
- With Senate ratification, to make treaties.
- To fill vacancies during Senate recess and to receive ambassadors.
- To pardon convicts and convene or adjourn Congress in certain cases.
- To demand formal opinions from department heads.
- To faithfully execute the laws.
So, what has this President done to merit our attention? Here are a few examples:
- He orders the killing of selected individuals (and any others nearby) located in foreign countries at will, usually using drone aircraft. In a lawsuit by the ACLU and the Center for Constitutional Government challenging this, The federal attorney told the court that the Administration has the power to kill, without review, any American it decides is a threat, per the Center for Constitutional Government's November, 8th, 2010 news release.
- The President has appointed Czars in charge of a number of important functions. The questionable offices are those not established in law, causing critics to question the legality of both their considerable authority and their invisibility to Congress.
- Presidential and Congressional actions assuming control of GM and Chrysler and providing a pre-designed, non-standard bankruptcy that arbitrarily favored the auto unions at the expense of share and bondholders are considered by many to violate the Constitutional protections of property as well as Presidential authority.
- The Federal Communications Commission (FCC) assumed regulatory authority over the internet and the Environmental Protection Agency (EPA) assumed regulatory authority over greenhouse gases though Congress had not empowered either to do so.
Other examples are available but these will support discussion. Killing citizens at presidential will without review seems pretty far from constitutionally limited government; that claim appears absolutely scary. The fact that it originated with killings mostly located in the backwoods of Pakistan offers no assurance of future locations. This court case bears watching (and has received remarkably little news coverage). Is this power on the list above?
Czars have been appointed without Senate approval and provided substantial authority over large segments of the economy. Car Czar Steven Rattner was appointed in the Treasury, set up the disposal of GM and Chrysler in a few months before resigning ahead of the sheriff in a corruption investigation and was replaced by a career union representative. Critics say the empowerment of czars obscures government operation since they aren't vetted by the Senate nor must they report to Congress. A number of them hold positions created by the Obama Administration, not by Congress in law, so it's argued that those are extra-constitutional.
Various Presidents have seized businesses and industries during emergencies; President Truman intervened with the railroads and meat packers to maintain production during the Korean War. His nationalization of the steel industry for the same reason however, was ruled out by the Supreme Court as beyond his authority. Historically, such interventions have been very short term. The Obama Administration's intervention with GM and Chrysler arbitrarily nationalized the businesses then repeatedly changed the management, stiffed the bondholders who were owed money and essentially used the assets to protect the unions. The government maintains its influence two years later. Whether this falls under the: nor be deprived of ... property without due process of law and nor shall private property be taken for public use without just compensation of the Constitution is part of this issue along with presidential power. Is this on the list above?
Finally, it seems inarguable that the regulatory departments of the Obama Administration are in practice going well beyond existing authority by expanding their regulatory reach into fields that didn't exist when the laws authorizing regulation were passed. Some in Congress evidently share this view; legislative moves to block these actions are under way.
Until the Supreme Court speaks to these issues, we will have to form our own opinions of the constitutionality of the Obama Administration's various actions. The ObamaCare legislation demanded by the President and passed by Congress appears to be headed toward that disposition at the moment. President Truman was more popular during his railroad and meat packers actions; much less so when he reached for the steel industry. Often, that factor has done more to determine the level of opposition aroused by a presidential power grab than has its conformance to the Constitution.
Much of what is today accepted Presidential activity might horrify the Founders, particularly in Presidential use of the military. It's safe to say that many presidents have enlarged presidential power during their terms of office and halfway through his first term, President Obama may be headed toward leadership among them. Power being a zero-sum game, increases in Presidential power are losses to somebody and ultimately per the Constitution, to the citizens. In the end, it takes the citizens to reverse them.
