Below is my column this week in American Legion Magazine which juxtaposed my view of the Obama presidency with the opposing view of William Howell, the Sydney Stein Professor in American Politics at the University of Chicago. Notably, a ranking member of the Administration this week wrote that more executive actions are being planned by the White House. These opposing articles capture the two very different perspectives of the evolving use of executive power in our tripartite system.

A Question of Power: The Imperial Presidency

When James Madison shaped a new constitutional system for the United States, he and his fellow framers had one overriding fear: tyranny.

They wanted to divide power between three branches and create lines of separation that prevented the concentration of power in any single branch. The framers based their ideas on an understanding of human nature – and human weakness. They tried to create a system in which ambition would check ambition. However, they knew that citizens can be distracted or deceived into giving up their very freedom. Madison warned future generations that “if Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy.” The framers knew how effective fear can be to induce citizens to give up their liberties. Recent years have proven them once again prophetic in their warnings.

To this day, many Americans misunderstand the separation of powers as simply a division of authority between three branches of government. In fact, it was intended as a protection not of institutional but of individual rights, by preventing any branch from assuming enough power to become tyrannical. No branch is supposed to have enough power to govern alone. Once power becomes concentrated in the hands of a president, citizens are left only with the assurance that such unchecked power will be used wisely – a Faustian bargain the framers repeatedly warned us never to accept. Benjamin Franklin said it best when he warned that “they who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”

Despite these warnings, many people have embraced largely unchecked presidential powers under the assurance that the rising security state will keep them safe. The shift of power to the presidency certainly did not start with President Barack Obama. To the contrary, this trend has been gaining ground for decades. But it has accelerated under Obama, who has succeeded to a degree that would have made Richard Nixon blush. Indeed, Obama may be the president Nixon always wanted to be.

I do not believe that Obama is (or wants to be) a tyrant. However, his unilateral actions are redrawing the lines of separation in our system in a way that I believe could prove destabilizing and even dangerous in the future.

While the “imperial presidency” has been discussed as a danger in our country since its founding, it is a term most associated with Nixon. Presidents such as Andrew Jackson and Franklin Delano Roosevelt showed similar tendencies. Often, war is cited as the reason for extraconstitutional action, such as Abraham Lincoln’s suspension of habeas corpus. “Imperial presidency” is not a term that reflects an actual royal ambition or the suspension of term limits. Rather, it refers to a model of the presidency that allows for a wide array of unilateral actions and largely unchecked powers.

What is fascinating is that Nixon was largely unsuccessful in accomplishing this dream of a presidency with robust and largely unlimited powers. Indeed, many of the unchecked powers claimed by Nixon became the basis for articles in his impeachment and led to his resignation on Aug. 9, 1974.

Four decades ago, Nixon was halted in his determined effort to create an imperial presidency with unilateral powers and privileges. But in 2013, Obama wields those very same powers openly and without serious opposition.

–Surveillance. Nixon’s use of warrantless surveillance was cited as one of his greatest abuses and led to the creation of the special Foreign Intelligence Surveillance Court. Obama, however, has expanded warrantless surveillance programs to a degree that dwarfs anything Nixon imagined, including initiating a program that captured communications of virtually every U.S. citizen.

–War. Nixon’s impeachment included the charge that he evaded Congress’ sole authority to declare war by invading Cambodia. Obama went even further in the Libyan war, declaring that he alone defines what is a “war” for the purposes of triggering the constitutional provisions on declarations of Congress. That position effectively converts the entire provision in Article I, Section 8 of the Constitution (“Congress shall have power to … declare War”) into a discretionary power of the president.

–Kill lists. Nixon ordered a burglary to find evidence to use against Daniel Ellsberg, who leaked the Pentagon Papers, and was accused of a secret plot to have the White House “plumbers” “incapacitate” him in a physical attack. People were outraged. Yet Obama has asserted the right to kill any U.S. citizen without a charge, let alone conviction, based on his sole authority. Internal documents state that he has a right to kill a citizen even when he lacks “clear evidence (of) a specific attack” being planned.

–Reporters/whistle-blowers. Nixon was known for his attacks on whistleblowers, using the Espionage Act of 1917 to bring a rare criminal case against Ellsberg. He was vilified for this abuse of the law, but Obama has brought twice as many such prosecutions as all prior presidents combined. Nixon was accused of putting a few reporters under surveillance. The Obama administration has admitted to putting Associated Press reporters, as well as a Fox reporter, under surveillance.

–Obstruction of Congress. Nixon was cited for various efforts to obstruct or mislead congressional investigators. The Obama administration has repeatedly refused to give evidence sought by oversight committees in a variety of scandals. In one case, Congress voted to move forward with criminal contempt charges against Attorney General Eric Holder, which Holder’s own Justice Department blocked. In another case, Director of National Intelligence James Clapper lied before Congress on the surveillance programs, and later said that he offered the least untruthful statement he could think of. The Obama administration, however, refuses to investigate Clapper for perjury, let alone fire him. Recently, the administration was accused of searching Senate computers in an investigation of the CIA and trying to intimidate congressional investigators.

These examples are simply those connected with the growing internal security state. Other characteristics of an imperial presidency are equally evident, particularly in the repeated circumvention of Congress in ordering unilateral changes to federal law or suspending federal laws.

While many hail Obama for not taking “no” for an answer from Congress in areas such as health care and immigration reform, they may rue the day another president uses the same powers to negate environmental or anti-discrimination laws.

It has long been said that one of the scariest statements is, “Trust us, we’re from the government.” The deep American distrust for such a claim was shared by the framers, who rejected a government based on assurances of the best intentions. Madison famously warned, “If men were angels, no government would be necessary.” In other words, we have a government that refuses to accept promises of good behavior or motivations from politicians.

Time and time again, Obama has returned to the theme that there is nothing to worry about in surveillance or wars or even the killing of citizens because he promises to use the powers wisely. The administration has been particularly adept in creating internal “committees” to suggest some form of due process before citizens are vaporized or other unchecked powers are used by the president. Since the president creates these committees and appoints their members out of his own authority, he can simply ignore their recommendations. It is little more than the promise of best intentions – the very promise the framers warned us never to accept from our government.

In the end, we have accepted the lure of personality over principle in allowing the expansion of these powers. Obama will not be our last president, but these powers are unlikely to be voluntarily surrendered by his successors. There is a radical change occurring in our system, and we may be at a critical constitutional tipping point in the establishment of an imperial presidency in the coming years.

The danger of this concentration of authority is made more acute by the failure of federal courts to perform their vital function in confining the branches to their constitutional spaces. Federal courts in the past few decades have maintained an increasing position of avoidance in separation-of-powers cases, leaving it to the political branches to fight over turf. Courts now routinely block litigants, including members of Congress, from even being heard on constitutional violations. Years ago, I represented Democratic and Republican members (both conservative and liberal) challenging the Libyan war. They were denied even a hearing.
Congress has proved equally passive, if not inert. Democrats have remained silent in the face of policies that challenge core values of privacy and war, as did Republicans under George W. Bush. That interbranch tension envisioned by Madison has gradually dissipated. Individual ambition of politicians has replaced institutional ambition, leaving many to curry favor with the White House as legislative powers are drained away by an increasingly powerful president. As that power increases, there is more pressure on politicians to yield in new areas.

This downward spiral may have reached its ultimate expression this year. Framers such as Madison would have been mortified by the scene from the most recent State of the Union address. Obama appeared before a joint session of Congress (and members of the Supreme Court) to announce that he intended to go it alone in achieving his policy goals, refusing to yield to the actions of Congress. One would have expected an outcry, or at least stony silence, from a branch that was being told it would be circumvented. Instead, there was rapturous applause that bordered on a collective expression of institutional self-loathing.

Obama has made it clear that he simply will not take “no” for an answer. When Congress recently refused to pass the DREAM Act to change immigration laws to protect potentially millions of deportable individuals, he simply ordered the very same measures on his own authority. The same unilateral measures were ordered in health care, drug enforcement, online gambling and other areas. The failure of Congress to consent to executive demands was followed by the same measures being ordered on the basis of Obama’s inherent authority. Under this approach, Congress is being reduced to an almost decorative element in governance – free to approve but not to block presidential demands.

While Congress clearly retains powers, its members are increasingly finding that discretionary funds and powers blunt efforts to change government programs. Even Congress’ power of the purse has become discretionary with the president. When Congress resisted demands of the president on health care, Obama simply shifted $454 million in funds from the purpose mandated by Congress to his own purpose. When he decided not to consult with Congress on the Libyan war, he simply spent roughly a billion dollars on a war neither declared nor funded by Congress.

Such circumvention – and the new presidential powers – create a perfect storm within the Madisonian system. It raises the very prospect the framers thought they blocked through the separation of powers: a president who can effectively rule alone.
We often refer to ourselves as the “land of the free,” as if that status were self-evident. We rarely ask ourselves what those freedoms are and how they have been abridged. Our self-image can border on self-delusion when we take stock of the status of many rights.

We have learned of a massive surveillance program in which every citizen has had telephonic and email data captured by the government. Every citizen has been warned that the president may kill them on his own authority without a charge, let alone a conviction. We have a secret court that approves thousands of secret searches every year and a federal court system that increasingly allows the use of secret evidence. We have a new Obama-era law, the National Defense Authorization Act, that allows for the indefinite detention of people by the government and, while exempted from mandatory detention, allows for such detention of citizens. We still have a detention center at Guantanamo Bay, established by George W. Bush, just over our border to avoid the jurisdiction of U.S. courts. It allows the president to choose who gets a real trial, who gets a legally dubious military tribunal, or who gets no trial at all. While seeking to close the facility, Obama has continued to assert the right to send people to military tribunals on his sole authority – thereby stripping them of core legal protections.

While the erosion of freedoms in the United States has occurred with nary a whimper of regret in this country, it has not gone unnoticed abroad. The United States is now widely viewed as a hypocrite on the subject of human rights and civil liberties. This year, our nation fell to 46th in the world on press freedoms (behind the former Soviet republics of Lithuania and Latvia as well as Romania, Poland, Czechoslovakia, Ghana, South Africa and El Salvador), according to a recent study by Reporters Without Borders. Another study this year counts the United States as an “enemy of Internet freedom” with countries such as Iran, China and North Korea.

When the full mosaic of new governmental powers is considered, and the full array of rights curtailed in the United States, we are left with a disturbing question of self-identity. We more often seem to define ourselves by what we are not than by what we are.
In the summer of 1787, a telling moment occurred after a crowd gathered around Independence Hall to learn what type of government had been created for the new nation. When Benjamin Franklin walked out of the Constitutional Convention, Elizabeth Powel could wait no longer. Franklin was one of the best known of the framers working on the new U.S. Constitution. Powel ran up to Franklin and asked, “Well, Doctor, what have we got, a republic or a monarchy?” Franklin turned to her and said what are perhaps the most chilling words uttered by any framer: “A republic, Madam, if you can keep it.”

It may be that it is not the presidency that has changed. We have changed. As a nation, we seem to have grown almost bored with rights like privacy and due process. We have been passive and pedestrian in watching the rise of an uber-presidency. We no longer view ourselves as directing our government, but as merely bystanders watching matters outside our control.
Worse yet, we seem to have lost not just our identity but even our interest in governance. It was a republic when Franklin was stopped by Powel.

I am not sure that most citizens today would even have stopped him to ask. “Democracy … soon wastes, exhausts and murders itself,” John Adams once said. “There was never a democracy yet that did not commit suicide.”
What is truly sad is that if one of the greatest republics in history did die, it is not clear if anyone would even notice its passing.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and frequently appears before Congress as a witness on constitutional issues. He is the host of http://www.jonathanturley.org, an award-winning legal and policy blog.

May 20, 2014 American Legion Magazine