Tuesday, March 03, 2009

Meet the new unitary executive -
Same as the old unitary executive.

Glenn Greenwald asks the question:
"Is Obama embracing the lawless, omnipotent executive?"
Why, yes. Yes he is.

Following up on my recent post - Obama Embraces the Bush/Cheney Unitary Executive - some recent updates. First from the SF Chronicle:
"A federal appeals court rejected the Obama administration’s attempt Friday to stop a judge in San Francisco from reviewing a challenge to the wiretapping program ordered by former President George W. Bush. Hours later, President Obama’s Justice Department filed papers that appeared to defy the judge’s order to allow lawyers for an Islamic organization to see a classified surveillance document at the heart of the case. The department said the judge had no power to enforce such an order... Jon Eisenberg, Al-Haramain's lead attorney, said he was happy with the appeals court ruling but astonished by the Justice Department's response. "The government's temerity in this case has never ceased to amaze me," he said. "What's amazing is that this is the Obama administration now."
Greenwald further notes:
"The brief filed by Obama on Friday afternoon (.pdf) has to be read to believed. It is literally arguing that no court has the power to order that classified documents be used in a judicial proceeding; instead, it is the President -- and the President alone -- who possesses that decision-making power under Article II, and no court order is binding on the President to the extent it purports to direct that such information be made available for use in a judicial proceeding. From page 5 of the Obama Brief, filed after its loss on Friday:

That's about as clear as it gets. There is only one branch with the power to decide if these documents can be used in this Article III court proceeding: The Executive. What the President decides is final. His decision is unreviewable. It's beyond the reach of the law. No court has the authority to second-guess it or to direct the President to comply with a disclosure order. That's the mentality -- and even the language -- drawn directly from the earliest Yoo Memorandum that created the theoretical foundation for what would be the omnipotent presidency... The extent to which that bothers someone depends, presumably, on how important they think it is that, even as Obama implements progressive domestic policies, the tyrannical and lawless theories that defined the Bush administration, the so-called "imperial presidency" be renounced."
In addition to pushing back hard against any judicial purview over the executive branch, the Obama administration is also moving to marginalize legislative branch influence on the executive. Recall the Obama administration recently failed to challenge Bush administration claims of Executive Privilege that were used to keep Karl Rove from testifying before Congress. In light of this, the Obama "shadow cabinet" of czars that presumably all fall under this Executive Privilege umbrella should be of particular concern. As pointed out in a letter from Democratic Senator Robert Byrd last week - these policymakers are all out of the reach of congressional oversight and threatens constitutional checks and balance:
"Sen. Robert Byrd (D-W.Va.), the longest-serving Democratic senator, is criticizing President Obama’s appointment of White House “czars” to oversee federal policy, saying these executive positions amount to a power grab by the executive branch. In a letter to Obama on Wednesday, Byrd complained about Obama’s decision to create White House offices on health reform, urban affairs policy, and energy and climate change. Byrd said such positions “can threaten the Constitutional system of checks and balances. At the worst, White House staff have taken direction and control of programmatic areas that are the statutory responsibility of Senate-confirmed officials.”

The over arching issue here is the check and balance between executive, legislative, and judicial branches. A key factor to consider, is how Congressional behavior changes depending on who is in the White House. What we saw with Bush, and we now see with Obama, is that when the majority controlling Congress is the same party as the President, the Congress abrogates their legislative branch oversight responsibility and becomes a lapdog for the executive branch. Try to imagine the hue and cry that would have come from this Congress and Obama supporters if McCain had won the election and taken these same actions.

Over the last two years we had some small positive movement on civil rights (and restoration of balance between the executive and legislature) when we had a Democratic Congress and a Republican President. Both the FISA bill and Patriot bill were softened with more civil liberty protections imposed. They are both still bad, but they got slightly better. The congressional investigations into the Justice Department firings resulted in a new AG, a house cleaning in the Justice Department, and was a contributing factor to the resignation of Karl Rove. Donald Rumsfeld - one of the enablers of the torture regimen - was booted, torture and rendition was investigated, and some tightening of the interrogation rules occurred with bipartisan legislation led by McCain.

Did the two years of divided government undo the damage of the six years of Bush/Cheney and single party Republican rule? Of course not. It is an incremental process. Was there progress? Yes. Progress that is now being undone by the Obama administration and a bend-over Congress. We are unequivocally moving backwards again.

It is the height of hypocrisy for anyone who railed against the Bush/Cheney power grab to poo-poo current Obama administration action or say we should take a wait and see attitude now. Obama started with the expanded unitary executive platform that Bush/Cheney built. He has a bigger majority in Congress than ever enjoyed by Bush and is moving to expand executive power even more. This is bad. This is very bad.

If Congress is out of the fight, the only HOPE™ to restrain the power of the executive is with the judiciary. The courts are the last line of defense. That is why the ACLU banner is now in the left sidebar. Send them a few bucks. We can also HOPE™ that Obama will appoint judges that will overrule the executive power grab his administration is pursuing.

POSTSCRIPT: The title of this post was shamelessly ripped from Doug Mataconis - here and here. I had to steal it, just so I can rationalize this "I told you so" repost of my pre-election video:

Divided and Balanced.™
Now that is fair.


andersunny said...

While I definitely agree that president Obama should not overstep his bounds as president, there is something to be said about a strongly democratic president and congress. Perhaps there will be less bickering, and more positive action (health care reform, ending of “torture”, etc…)! While no branch should be given the opportunity to rule completely without anyone to check them, the people did vote for a democratic congress majority and president. I don’t think it is fair to equate the idiocy of the bush administration to the progressive Obama administration. Let’s give the democrats a chance and perhaps we will have something to HOPE™ for!

mw said...

"While no branch should be given the opportunity to rule completely without anyone to check them, the people did vote for a democratic congress majority and president.I don’t think it is fair to equate the idiocy of the bush administration to the progressive Obama administration." - Liz

Here is a problem Liz - This is not about whether Obama takes advantage of and abuses the near monarchical powers claimed by the Bush/Cheney administration. He said during the campaign he would move to help restore the balance with Congress and the Judiciary. He isn't He is doing the exact opposite. He is actively defending, continuing, and extending the power of the Bush/Cheney definition of the unitary executive. Even if you believe that Obama is a kind and good benevolent king, he won't be king forever. I hope you are as sanguine about the expanded power of the presidency when a Romney, or Palin, or - God Forbid - if Biden takes the reigns.

I don't think people were so much voting for single party far left Progressive Democratic Rule as they were voting against what you call the "idiocy of the Bush administration".

Unfortunately, but predictably - Progressives and Obama now think they have a mandate for radical change, while Independents and Centrists that voted for Obama are getting buyer's remorse. Too late. The left has the votes, and there is no telling how much damage will be done over the next four years to the budget, our economic liberites and our already broken economy. The least Obama could do is work to restore our civil liberties. It is not happening.