The coming peaceful transition of power from the previous administration to the next1 is rapidly approaching, and it’s still difficult to know what to expect from the incoming administration. Much like the contradictory (and often confused) rhetoric from the president-elect during the campaign, there are some reasons for cautious optimism for libertarians from Trump’s cabinet nominees, and also reason for concern about presidential power.
Regardless, one thing that is certain is that Trump, a thin-skinned bully with a history of using the government to get his way, will be inheriting one of the most powerful positions on the planet. That prospect rightfully has many people concerned. To those people I say: Thank Obama.
Expanding the power of the Presidency
What do I mean? For years, libertarians have warned about the dangers of expanded presidential power and cautioned about the abdication of congressional power to the executive branch. The president in our constitutional republic isn’t supposed to be all-powerful. There is supposed to be a system of checks and balances to ensure that no single branch of government got too powerful. There should be limits placed by Congress and the Supreme Court on what President Trump can do. Unfortunately, as this Reason article (and video above) explains, President Obama has spent much of the past eight years working to expand the power of the presidency and circumventing Congress by using his “pen and phone” strategy. In short, President Obama has left a loaded gun in the Oval Office.
One clear example of President Obama trying to work around Congress is when he tried to force through appointments to the National Labor Relations Board without Senate confirmation, an act which got rejected by the Supreme Court on a 9-0 vote. It was so brazen an act that even the two Justices that Obama appointed to the Supreme Court (Sotomayor and Kagan) voted against him. It wasn’t some one-off result, either. President Obama has lost in the Supreme Court more than any modern president, and it can’t just be chalked up to “Republican obstructionism.”
This term, the federal government argued an incredible 10 cases without gaining a single vote, not even that of one of President Obama’s own nominees, Sonia Sotomayor and Elena Kagan. That brings his total to 44 unanimous losses. For comparison, George W. Bush suffered 30 unanimous losses, while Bill Clinton withstood 31. In other words, Obama has lost unanimously 50 percent more than his two immediate predecessors.
– President Obama Has Lost In The Supreme Court More Than Any Modern President by Ilya Shapiro.
In foreign policy, Congress is supposed to have the power to declare war, yet President Obama didn’t see any need to seek approval from Congress before getting involved in the Libyan civil war. The haphazard intervention and lack of long term planning involved is evident in how Libya appears to be even worse off in the aftermath. Drone strikes are another troubling legacy of expanded presidential power that Obama is leaving behind. From the New York Times:
Obama’s embrace and vast expansion of drone strikes against militants and terrorists will be an enduring foreign policy legacy. Whereas President George W. Bush authorized approximately 50 drone strikes that killed 296 terrorists and 195 civilians in Yemen, Pakistan and Somalia, Obama has authorized 506 strikes that have killed 3,040 terrorists and 391 civilians.
– Obama’s Embrace of Drone Strikes Will Be a Lasting Legacy by Micah Zenko.
Even more troubling than the sheer numbers (particularly in terms of civilian deaths) is who was targeted by drone strikes. There seems little doubt that Anwar Al-Awlaki was a bad guy, but he also was a US citizen who didn’t appear to pose an imminent threat, and thus seemed to have been denied due process. We’re asked to trust President Obama with a secret kill list that essentially makes him judge, jury and (indirectly) executioner and people largely seem to accept that on the basis of Obama appearing to be a calm and thoughtful man. Unfortunately, now that same power will be in the hands of the man who brags that he could shoot somebody and not lose voters.
About that “Republican obstructionism”
A popular rallying cry in recent years is that Obama has been driven to these extreme measures by obstructionist Republicans, often by way of repeating the Mitch McConnell quote which was largely taken out of context. It’s an interesting criticism, because as Nick Gillespie notes:
People are quick to forget that when Obama won election, he had large congressional majorities too and got everything he asked for during his first two years. Besides tripling troop strength in Afghanistan, expanding and extending TARP bailouts, passing a stimulus plan, and shoving Obamacare through, all that netted was a Republican Congress in the 2010 midterms. Suddenly, the guy who was fond of saying “elections have consequences” was singing a different tune, one about having “a pen and a phone” and how he wasn’t just “going to be waiting around for legislation.” And he didn’t.
The Affordable Care Act (Obamacare) was passed without a single Republican vote in support of it. Obama and the Democrats had two years to pass whatever legislation they wanted. In response, the American people began electing Republicans to congress (and state level positions) at a fairly historic rate. Is it any wonder that Republicans, who Obama saw little need to court during the passing of his signature legislation and who seemed to be elected in a backlash to the president’s policies, wouldn’t be enthusiastic to continue to pursue his agenda? It’s not the job of Congress (or the opposition party) to pass whatever legislation the president wants simply on account of him being the president. To the contrary, the legislative branch (i.e., Congress) is supposed to have “sole authority to enact legislation. Why isn’t the narrative reversed and President Obama being accused of obstructing Congress?
A bipartisan problem
To be fair, Obama is merely the latest offender and could be considered to simply be following in the footsteps of George W. Bush. The abdication of congressional power and the cheering on of the consolidation of presidential power is undoubtedly a bipartisan problem. Republicans largely were happy to rubber stamp the excesses of the Bush administration and were quick to decry Democrats who opposed them as unpatriotic. Just a few years later, those same Democrats who were cheerfully opposing George W. Bush judicial nominees and refusing to hold hearings were decrying Republican efforts to oppose Obama nominees. The anti-war, left which so loudly opposed President Bush’s wars, magically disappeared in 2008, not because the wars ended, but because the president prosecuting them now shared party affiliation with them. Neither side has a monopoly on hypocrisy.
“For eight years Republicans have complained that the presidency was too powerful, that President Obama ruled like a dictator, and that the powers of the presidency needed to be curbed,” Nichols said. “My guess is that they’re not going to be very serious about that principle.”
With the shoe on the other foot, the left may soon realize how terrifying some of the president’s authorities can be.
“If you are concerned about overreach of executive authority, and the only thing that was keeping your concerns at bay was that President Obama had that authority… [it’s] going to come back to bite people in the rear, because now a President Trump will rely on those same authorities,” said Bradley Moss, a lawyer specializing in national security law.
– Obama’s Imperial Presidency Now Is Trump’s by Tim Mak
As Conor Friedersdorf writes in End the Imperial Presidency Before It’s Too Late, the combined accumulation of presidential power over the past two presidential administrations (and corresponding congressional abdication of responsibility) has led to the incoming President Trump having the following powers:
- The president can order American citizens killed in secret.
- The president can detain prisoners indefinitely without charges or trial.
- The president can order drone strikes at will in countries against which no war has been declared.
- The president can start a torture program with impunity.
- The president can conduct warrantless surveillance on tens of millions of Americans.
That list should be cause for concern, even for Trump supporters.
The hypothetical becomes reality
When it comes to illustrating the dangers of too much executive power, libertarians are fond of providing a hypothetical. Instead of asking yourself if you trust the current president with a certain power (detaining indefinitely without trial, killing American citizens without due process, engaging in war without congressional approval, etc.), imagine the worst possible person assuming the presidency and ask yourself if you trust him (or her) with that power. For many people, that is no longer a hypothetical with President-elect Trump. Hopefully the correct lesson is being learned. It’s important to elect the right person as president, but it’s even more important that presidential power is constrained.
