Executive Power

Marty Lederman Reacts to NYT Story on Obama Unilateralism

By Jack Goldsmith
Monday, April 23, 2012, 2:25 PM

Marty Lederman has a post defending the Obama administration in connection with this NYT story, but I think he overreacts.

Marty claims that the story by Charlie Savage contributes to the “common but flawed ‘convergence’ narrative” that “President Obama has substantially abandoned the views he held before taking office and, chastened by the realities of the office, has largely embraced and recapitulated the conduct of his predecessor.”  But that is not at all what Savage claims.  Savage was clear that “for the most part, Mr. Obama’s increased unilateralism in domestic policy has relied on a different form of executive power than the sort that had led to heated debates during his predecessor’s administration: Mr. Bush’s frequent assertion of a right to override statutes on matters like surveillance and torture.”  I thus cannot understand how Marty can make this (in any event internally contradictory) claim:

At least two things are conspicuously absent from the Times story.  First, as author Charlie Savage himself acknowledges (quoting Rick Pildes), President Obama has not used executive power in the manner made controversial during the Bush Administration--namely, by acting in violation of a statute.

Moreover, Marty makes a big deal out of the fact that Obama was in most instances cited in the Savage piece purporting to exercise delegated authority from Congress.  But while Savage does not make that point as clearly as he could have, he does quote Rick Pildes as saying that in the instances Savage cites Obama “otherwise has the legal authority to issue an executive order on an issue.”

I think what Marty objects to is the use of the term “unilateral executive power” as applied to the issuance of executive orders based on congressional delegations.  That seems like a technical quibble, since the Savage story makes clear that the EOs were part of a broader and self-conscious effort by the Obama administration to use whatever tools it has at its disposal – EOs based on delegated authority, recess appointments, non-defenses of congressional statutes, and more – to achieve its policy ends without securing congressional legislation.  And of course the Savage story did not mention the national security realm, where the administration has not exactly worked with Congress on issues ranging from GTMO to Libya (both the initial intervention, which flew in the face of the president’s prior position, and the War Powers Resolution controversy).  The point of the Savage story is not that President Obama exercises executive power exactly like the Bush administration did.  The point of the story is that he is using every executive power tool at his disposal, including some very aggressive ones, vis a vis Congress, to achieve his policy goals, and he is openly bragging about doing so – all contrary to expectations created at the dawn of his administration.