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The Conservative Curmudgeon
July 5, 2012

Out-of-Control Executive Threatens Representative Government
by Allan C. Brownfeld

ALEXANDRIA, VA —The growth of presidential power in recent years constitutes a serious threat to representative government. The idea of the executive "executing" the laws passed by the elected representatives of the people seems to be an old-fashioned notion to those in power — whether Republicans or Democrats.

When President Obama unilaterally called a halt to deportation proceedings for certain unauthorized immigrants who came to the U.S. as minors, the eligibility requirements roughly tracked the requirements of the Dream Act, which Congress never passed.

In an interview with Latino journalists last fall, the president said, "This notion that somehow I can just change the laws unilaterally is just not true. We live in a democracy. You have to pass bills through the legislature, and then I can sign it."

Gene Healy, vice president of the Cato Institute, notes, "As it happens, Obama's 'royal dispensation' for young immigrants is hardly the most terrifying instance of administration unilateralism. In fact, as a policy matter, it's a humane and judicious use of prosecutorial resources. But given the context, it stinks. It looks uncomfortably like implementing parts of a bill that didn't pass and — carried out as it was with great fanfare and an eye to the impending election — the move sits uneasily with the president's constitutional responsibility to 'take Care that the Laws be faithfully executed.'"

In another matter, the president claimed "executive privilege" in withholding information about the U.S. Justice Department's Operation Fast and Furious. The operation deliberately put assault weapons in the hands of Mexican drug cartels as part of a sting and then lost track of hundreds of them. In 2012, a Border Patrol agent was killed, apparently by one of these guns.

Executive privilege, affirmed by the Supreme Court in U.S. v. Nixon, is historically limited to the president's own discussions. President Obama has extended it to his attorney general. This extension contravenes the president's promises of transparency.

Recent legislation has made legal the president's right to detain a person indefinitely on suspicion of affiliation with terrorist organizations or "associated forces" — a broad, vague power that can be abused without real oversight from the courts or the Congress.

American citizens can now be targeted for assassination or indefinite detention. Recent laws have also canceled the restraints in the Foreign Intelligence Surveillance Act of 1978 to allow unprecedented violations of our right to privacy through warrantless wiretapping and government mining of our electronic communications.

According to The New York Times, President Obama personally decides on every drone strike in Yemen and Somalia and the riskiest ones in Pakistan, assisted only by his own aides. It is reported that suspects are now being killed in Yemen without anyone knowing their names, using criteria that have not been made public.

Editorially, The Times declares that no president "should be able to unilaterally order the killing of American citizens or foreigners located far from a battlefield — depriving Americans of their due process rights — without the consent of someone outside his political inner circle. How can the world know whether this president or a successor truly pursued all methods short of assassination, or instead — to avoid a political charge of weakness — built up a tough-sounding list of kills?"

To permit President Obama or any president to execute American citizens without judicial review and outside the theater of war gives him the power of judge, jury, and executioner without any check or balance. This is clearly an abuse of presidential power.

For many years, under both parties, the power of the executive has grown. In his classic 1956 work, The American Presidency, Professor Clinton Rossiter writes, "The presidency has the same general outlines as that of 1789, but the whole picture is a hundred times magnified. The president is all things he was intended to be, and he is several other things as well.... The presidency today is distinctly more powerful. It cuts deeply into the power of Congress. In fact, it has quite reversed the expectations of the Framers by becoming itself a vortex into which these powers have been drawn in massive amounts. It cuts deeply into the lives of the people; in fact, it commands authority over their comings and goings that Hamilton himself might tremble to behold. The outstanding feature of American constitutional development is the growth of the power and prestige of the Presidency."

He also makes the converse explicit: "The long decline of Congress has contributed greatly to the rise of the presidency. The Framers... expected Congress to be the focus of our system of government." The power of the presidency has steadily expanded since Rossiter’s 1956 work, no matter which party was in power.

When Republican presidents expanded the power of the presidency, Republicans in the Congress acquiesced. When Democratic presidents expanded the power of the executive, Democrats in the Congress embraced that expansion. The result is an executive branch that is increasingly unaccountable to the elected representatives of the people. That is not the system the authors of the Constitution envisioned. We would do well to return to the constitutional philosophy of checks and balances and a division of powers. An all-powerful executive is a threat to freedom and accountability, as the Framers of the Constitution understood very well.

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The Conservative Curmudgeon is copyright © 2012 by Allan C. Brownfeld and the Fitzgerald Griffin Foundation. All rights reserved. Editors may use this column if this copyright information is included.

Allan C. Brownfeld is the author of five books, the latest of which is The Revolution Lobby (Council for Inter-American Security). He has been a staff aide to a U.S. Vice President, Members of Congress, and the U.S. Senate Internal Subcommittee.

He is associate editor of The Lincoln Reveiw and a contributing editor to such publications as Human Events, The St. Croix Review, and The Washington Report on Middle East Affairs.

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© 2012 Fitzgerald Griffin Foundation