The President’s use of executive power outside and above the bounds of the Constitution is well known at this point. In policies ranging from the railroading of creditors in the auto bailouts, to Obamacare by waiver, eliminating key work provisions in the 1996 welfare reform legislation, Deferred Action for Childhood Arrivals, and to the informed suspicion that he will unilaterally legalize 5 to 6 million illegal immigrants, this President has entered a new realm of abuse of power. Resulting from the stress he’s placing on our constitutional order have arisen significant interventions that attempt to underline how and why we have arrived at this new dimension of executive power, even in the case of Congress there is an attempt to reclaim its authority, if only in a pusillanimous manner.
Though it’s been a few weeks since it appeared, I would be remiss if I didn’t mention Stephen Knott’s excellent piece on whether Woodrow Wilson destroyed the office of the presidency. The clamor about the imperial presidency is on the rise with many commentators (such as George Will) and Knott’s article gives us a better understanding of its rise, as well as its implications. Knott describes the “expectations gap” that has arisen due to modern conceptions of the presidency, where we expect the president to heal the planet, rather than work to enact reforms within the institutions of constitutional government.
In response to Professor Knott I would only mention that I think Woodrow Wilson may not even deserve top billing in terms of producing the rise of presidential power.
Like many others at the moment, I am making my way through Philip Hamburger’s Is Administrative Law Unlawful? One of the most shocking chapters is his chapter on America’s “Return to Extralegal Adjudication,” a problem that constitutional law had originally aimed to constrain, but which has re-emerged in the context of the modern administrative state.
I knew that there were problems with administrative adjudication – I just didn’t grasp how pervasive the problems were until Hamburger laid them out so systematically.
I’ve just finished F.H. Buckley’s excellent new book The Once and Future King. I’m reviewing the book for another outlet so I won’t repeat myself here, but here’s the short version: Professor Buckley has identified a key weakness in the American system of government, but perhaps has misidentified its roots. Regardless, I think that his book is very important for thinking about a way out of our present gridlock and dysfunction.
Here I would like to take up and challenge one of the most controversial parts of Buckley’s argument.
With the creation of a special congressional committee to investigate the 2012 attack on the U.S. consulate in Benghazi, the three branches of government will soon head for a constitutional collision. Obama administration officials, past and present, will resist the call to testify. They will respond to congressional subpoenas by claiming executive privilege or asserting their right to avoid self-incrimination. To get answers to its questions, the committee may hold Obama officials in contempt. Under today’s misconceived system of judicial supremacy, the courts may decide the winner. If the original understanding of the Constitution prevailed, Congress would probably prevail. But investigations has become yet another matter where Washington, D.C.’s practices have strayed far from the Constitution.
With this I end with thanks a month-long stint as a Law and Liberty blogger. It’s been great fun, even with the distractions that came from pushing my book, The Once and Future King: The Rise of Crown Government in America.
The book’s thesis is that, from an admirable patriotism and a less attractive ignorance of history, American libertarians do not adequately defend liberty.
We are all patriots first and philosophers second—and that is just as it should be. For American theorists, patriotism means elevating people such as James Madison to the pantheon of political philosophy. The British have Hume and Burke, the French have Rousseau and Tocqueville—and the Americans have Madison and Hamilton. To be sure, they’re not mediocrities. But then they’re not the people who made the deals that produced the Constitution, or whose beliefs informed its content.
A year has now passed since President Obama pledged, in an address at the National Defense University, to “engag[e] Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate.” It has been neither refined nor repealed, and neither Congress nor the American people—I’ve checked my messages—has been engaged on the topic.
This next Liberty Law Talk is with Frank Buckley about his new book The Once and Future King: The Rise of Crown Government in America. Buckley's book is a profound challenge to the script of presidential power that many conservatives have read from over the past decades. Our conversation focuses on Buckley's argument that the American constitutional system has become dangerously unmoored from the congressional system of government that its ratifiers intended for it. This conversation explores a close reading of the Constitutional Convention of 1787 to understand Buckley's claim of how indisposed the members of that convention were to an…
The brilliant light that burst over the Northwest quadrant of the nation’s capital Thursday was not a sunrise. Illuminating the skies above the White House was the light bulb of discovery, in this case of an antiquated constitutional ideal: the separation of powers. The NSA metadata program having been authorized by Congress, the President announced plans to seek its reform by Congress. He is to be commended for involving the legislative branch of government in a decision involving, well, legislation.
President Obama and his advisors have told us that he can work around a purportedly obstructionist Congress by using what they claim is legitimate executive authority exercised by “pen and phone.” The phrase is meant to put across the idea that the president can get things done by signing off on various formal and informal executive initiatives, and cajoling Americans within government and without to act according to his vision. White House advisor Dan Pfeiffer, who is credited with inventing the phrase, recently explicated its meaning by observing that in an era of divided government, a Democratic president cannot easily get his way when Republicans control Congress. In order to “move the ball forward” on the president’s agenda, the deployment of “executive power” is required, according Pfeiffer.