Peter M. Shane: The Ambivalent Presidency? Executive Power Under the Obama Administration

[Peter M. Shane's 2009 book, Madison's Nightmare: Unchecked Executive Power and the Threat to American Democracy, is published by the University of Chicago Press. He is the Jacob E. Davis and Jacob E. Davis II Chair in Law at the Ohio State University's Moritz College of Law, where he also directs the Project on Law and Democratic Development.]

The George W. Bush Administration had the most ambitious view of executive power in history.  Bush sympathizers see little difference in the Obama Administration.  Bush’s detractors, in some respects, agree.

The truth is probably closer to the following:  The Obama Administration has cast aside some of the Bush Administration’s more audacious claims.  It is still struggling, however, to find a consistent stance with regard to its philosophy of executive power.

On one hand, the Obama Administration has asserted the state secrets privilege in national security litigation.  It resisted judicial review of enemy combatant detention in Afghanistan.  It has pursued the Bush Administration’s Status of Forces Agreement with Iraq, even though it was never approved by Congress.

The Obama Justice Department even urged in federal court a newly expansive interpretation of the USA PATRIOT Act.  If the argument prevails, it could immunize the federal government from liability under any federal law for warrantless wiretapping.

On the other hand, President Obama revoked President Bush’s obnoxious executive order on presidential records, which seemed to invent the idea of vice-presidential privilege from whole cloth and purported to allow family members of former Presidents to claim privilege in their name.  He implicitly repudiated the Bush Administration’s restrictive view of the Freedom of Information Act, and famously released Bush-era OLC memoranda on torture.  The Obama order on military interrogations reasserts the applicability of congressional restrictions to the conduct and conditions of military detention.

Equally telling, although arguably more obscure, are the moments in the conduct of national affairs where the Administration’s impulses seem to pull obviously in opposite directions.  For example, within his first two weeks in office, President Obama pointedly revoked two Bush Administration executive orders that tightened White House oversight of regulatory policy making by executive branch agencies.  In March, however, OMB Director Peter Orszag issued a memorandum reclaiming much of the authority the Obama order seemed to repudiate.

On March 9, President Obama issued a presidential memorandum pledging restraint in the use of so-called signing statements.  Within weeks, he issued two such statements of his own.

Despite these moments of ambivalence, I remain hopeful that the Obama Administration will turn its back with increasing clarity on the theory and practice of the “unitary presidency.”  The test is not whether he eschews all claims to presidential authority; the President does, in fact, have substantial constitutional and statutory powers.  The test is the clarity with which he accepts the other branches’ roles in checks and balances, and the scope with which he allows other executive branch officers to take the lead in fulfilling their own statutory roles.

I draw my optimism from the way in which the President has so far addressed matters that Congress has assigned to executive branch agencies.

Consider, for example, the recent release by the National Institutes of Health of proposed new guidelines on federal funding for stem cell research.  The most remarkable thing about the guidelines is not the way in which they either preserve or remove limits on such research.  The most remarkable thing is that they were not drafted by the White House.

Federal law charges the director of NIH with making decisions on federal health research funding.  In August 2001, however, President Bush personally commanded that federal funding would be available for stem-cell research only if based on existing stem cell lines.  President Obama revoked the 2007 executive order that formalized the Bush policy, but he returned stem cell funding authority where the law places it.  Reinstating NIH’s authority to decide on research funding policy was clearly a rebuke to the Bush Administration’s theory of “the unitary presidency.”

Consider, in the same vein, how President Obama treated his predecessor’s decision to relax interagency consulting requirements with regard to federal projects potentially threatening to endangered species.  Instead of purporting to order federal agencies to rescind the prior policy, President Obama wrote:  “I hereby request the Secretaries of the Interior and Commerce to review the regulation issued on December16, 2008, and to determine whether to undertake new rulemaking procedures with respect to consultative and concurrence processes that will promote the purposes of” the Endangered Species Act.  Again, the language of “request” and implicit deference to the judgment of others are conspicuous.

Obama doubters may find signals like these too subtle. Curtis Bradley and Eric Posner have accused the Administration of using “symbolic gestures and changes in labeling to mask the continuity” in the Administrations’ respective stances on executive power.  Symbols and language matter, however, especially in the psychology of institutions.

Among the primary functions of Bush’s repeated invocation of unitary presidency theory was the attempt to discipline the second branch of government to follow a view of executive policy making in which the White House dictates policy content, and much of what the President does is simply immune to congressional regulation or judicial review.

An equally important function of President Obama’s rhetoric is signaling his acceptance of pluralistic policy deliberation within the executive branch and his embrace of external accountability.  I expect the Obama rhetoric, like Bush’s, to have clear operational consequences.

I also draw heart from the character of President Obama himself.  The impact of unitary executive theory was worse in the Bush Administration because the President and Vice President seemed to personally embody the very worst tendencies in governance that presidential unilateralism portends – tendencies towards shallow, defensive, ideologically driven, and sometimes lawless decision making.

In a contrary spirit, President Obama seems to embody the very tendencies in governance that checks and balances were intended to foster – tendencies towards thoughtful, inclusive, deliberative, and legally accountable decision making.

The problem for constitutionalists is that legal and historical precedents outlast an Administration, while a President’s personality does not.  I thus hope that, as the Administration sorts out its thinking, a clearer and more consistent embrace of checks and balances and policy pluralism emerges.

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