Will Congress cede its powers to the Obama administration?

Early signs, from Obama's intention to use numerous executive orders to the role he's playing in the Lieberman controversy, portend continued abdication of power by Congress.

Published November 11, 2008 12:40PM (EST)

(Updated below - Update II - Update III - Update IV)

There is much discussion about the signals Barack Obama is sending regarding whether Senate Democrats should strip Joe Lieberman of his powerful position as Chairman of Homeland Security and Governmental Affairs.  Reports yesterday indicate that Obama is telling Senate leaders he wants Lieberman to remain in the Democratic caucus, but it's unclear whether or not that means Obama wants Lieberman to keep his Chairmanship, how much of this is designed to distance Obama from any eventual confrontation, whether this is all just for show to pretend they're considering doing something about Lieberman, and how accurate these anonymous reports really are.

More reliably, key Obama ally Chris Dodd last week was dispatched to announce that Obama does not want a fight over Joe Lieberman's status.  Dodd informed us that the key question that should be guiding the decision-making process is:  "What does Barack Obama want?"  Dodd's instruction was at least slightly less deferential than the formulation used by this commenter here yesterday, who actually said -- with no irony -- that, in political controversies, we should be guided by this question: "What would Obama do?"  That sentiment tracks this unbelievably creepy website which exists -- as its own banner proudly proclaims -- "to encourage supporters to always think, 'What Would Obama Do?' in their political dealings, so we, too, can create a new form of politics."

I've written very recently about my reasons for emphatically believing that Lieberman should be stripped of his Homeland Security Chairmanship, but whatever the outcome here is, it's vital that it be the Senate's decision, not Barack Obama's.  How the Senate organizes itself and which members chair its Committees is about as purely within the legislative domain as it gets.  It makes sense that Senate Democrats want to cooperate with Obama and that they have good feelings towards him in light of his election victory.  Still, if the Senate has any sense of its own institutional integrity and any intention to defend its constitutionally assigned prerogatives, the last thing Senators would be doing is allowing Obama to interfere with, let alone dictate to them, how they proceed in deciding what to do about Lieberman.  If they don't jealously safeguard that arena from executive intrusion, what do they safeguard?

Sarah Palin's campaign remarks that the Vice President "is in charge of the U.S. Senate" brought back into the spotlight the highly instructive treatment by Lyndon Johnson of his former Senate colleagues once Johnson became Vice President.  Before joining the Kennedy administration, Johnson, in essence, was the U.S. Senate; as Majority Leader, he exerted DeLay-like control over its proceedings.  Johnson expected to continue to exert great influence in the Senate as Vice President.  But his former Democratic Senate colleagues vehemently resisted those efforts on the ground that, as a member of the Executive Branch, Johnson no longer had any role to play in how the affairs of the Senate were conducted.  He was all but frozen out and rendered powerless (see this brief though illuminating history [.pdf] by Sen. Mark Hatfield and the Senate Historical Office).

That is what "separation of powers" means, and it's at least as vital -- probably more so -- for it to be honored when the same party controls the White House and both houses of Congress.  What fueled the abuses of the last eight years as much as anything else was the ongoing (and severely accelerated) abdication of power by Congress to a bordering-on-omnipotent presidency.  It's critically important that an Obama administration reverse the substantive transgressions of the Bush era -- closing Guantanamo, ending torture and rendition, restoring habeas corpus, rejuvenating surveillance oversight, withdrawing from Iraq, applying the rule of law to political leaders past and present -- but it's at least as important that this be accomplished in the right way, that our constitutional framework be restored.  That means restricting the President's role to what the Constitution prescribes and having Congress fulfill its assigned duties and perform its core functions.

This is anything but an abstract concern.  Central to the design of the republic is the power of the citizenry to remove all members of the House and 1/3 of the Senate every two years.  That's the central mechanism by which the people, through their representatives in Congress, keep the Government responsive.  But none of that matters -- it's all just illusory -- if Congress has no real power and exists as little more than a passive and obedient vassal of the President.  We shouldn't want that arrangement even if, at a given moment, we are lucky enough to have a magnanimous President who makes good decisions and wants to do good things with his centralized, unchecked and imbalanced power.

The Lieberman controversy merely symbolizes how entrenched this problem has become.  Just consider reports this week that Obama intends to use unilaterally issued, unchecked Executive Orders, rather than acts of Congress, to dictate outcomes on a whole range of politically controversial policy debates that are so plainly the province of the Congress to legislate -- from restrictions on stem-cell research funding to regulations governing aid to foreign family planning groups to oil drilling.  Here's what Obama's transition chief, John Podesta, said about that:

There's a lot that the president can do using his executive authority without waiting for congressional action, and I think we'll see the president do that.  I think that he feels like he has a real mandate for change. We need to get off the course that the Bush administration has set.

Podesta's infatuation with the power of executive orders recalls the infamous comment made by Clinton aide Paul Begala regarding the robust use of executive orders by the Clinton administration to make policy:  "Stroke of the pen.  Law of the land.  Kinda cool."  

That isn't actually how things are supposed to work.  The Constitution doesn't vest the President with the power to make laws with the "stroke of the pen," and it's not "kinda cool" that we've allowed it to happen.  It's actually quite dangerous and anti-democratic, as James Madison warned in Federalist No. 47:

The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny.

As Madison explained in that paper, it was only because the Constitution separated those powers among the branches -- with the legislative power (the power to make laws) assigned exclusively to Congress and the executive power (the power to execute those laws) assigned to the President -- was Madison convinced that the presidency created by the Constitution, deprived of lawmaking power, would pose no threat to republican liberty.

Let's be clear:  Obama didn't create these erosions and he hasn't even been inaugurated yet, so it's irrational to begin blaming him for this state of affairs.  Many of the policies he is contemplating changing via Executive Order were ones that were improperly implemented by Executive Order in the first place.  And, principally, it's the responsibility of Congress to defend its constitutionally assigned powers, not of Obama to refrain from encroaching on them. 

Nonetheless, we have strayed indescribably far from the system of Government we were supposed to have.  That we trust a particular President and believe he'll do good things, achieve good outcomes, with excessive power is no reason to be happy with that state of affairs.  As is often the case, Democratic Congressional leaders seem far more content to submit to power than to exercise it.  But we shouldn't treat the framework created by the Constitution as optional or waivable when it seems there are good things to be gained by doing so.  Podesta is right that "we need to get off the course that the Bush administration has set."  That should include, first and foremost, respect for the roles assigned to the various branches by the Constitution.

UPDATE:   For those ready to leap into the Comment section and declare that this is a terribly unfair attack on Obama, I'd request that you first re-read this:

Let's be clear: Obama didn't create these erosions and he hasn't even been inaugurated yet, so it's irrational to begin blaming him for this state of affairs. Many of the policies he is contemplating changing via Executive Order were ones that were improperly implemented by Executive Order in the first place.

The issue is whether Congress will demand a restoration of its powers and prerogatives or whether, instead, we will have a continuation of the state of affairs where we live under a virtually omnipotent presidency which exercises all sorts of powers the Constitution does not assign to it.

UPDATE II: At least on the record, Obama is now saying that he has no position on whether Lieberman should be stripped of his Chair and that, instead, it is a decision for the Democratic caucus to make.  Greg Sargent, who reported this, says that Obama's non-position "is all but certain to take the steam out of any efforts to dislodge Lieberman from the committee," while Markos says the opposite is true:  "it's a generic, 'Reid can do what he wants in his Senate' type of statement."  With these sorts of matters, it's very hard to know what Obama is actually conveying and what is really going on off the record.

According to Howard Fineman, it is Dick Durbin and Chuck Schumer who are among the most vocal in wanting Lieberman removed, while Chris Dodd and Evan Bayh are defending him.  This will be decided by secret Senate ballot, so we'll likely never know who did what.  It's hard to say what will happen, but if I had to guess, I'd say that Lieberman will remain exactly as is.  Does anyone really have any faith in Senate Democrats to do anything else?  That's just speculation, and I'll be the first one to happily acknowledge error if I'm wrong about that (here is an excellent tool for those wanting to urge key Senators to vote to strip Lieberman of his Chairmanship).

UPDATE III: This disturbing Wall St. Journal article today claims that "President-elect Barack Obama is unlikely to radically overhaul controversial Bush administration intelligence policies" and specifically lists Bush's torture and surveillance policies as ones Obama is unlikely to change very much, if at all.  Noting that Obama's approach "is almost certain to create tension within the Democratic Party," the article attributes his posture to the fact that Obama "is being advised largely by a group of intelligence professionals, including some who have supported Republicans, and centrist former officials in the Clinton administration" and therefore is "going to take a very centrist approach to these issues."

Unlike the above-discussed report about Obama's intentions concerning executive orders, which was confirmed by Obama transition chief John Podesta, reports like this should be taken with a hefty dose of skepticism, as they are often used by people to push a President-elect in the direction they want him to go.  If this report is true, we'll know soon enough.  Still, there's no question that there will be immense pressure on Obama among his closest advisers not to follow through on the commitments he made on issues relating to executive power, and -- as the article suggests -- Obama's past support for FISA expansions and telecom immunity (after he promised he would oppose it) lends credence to these reports.  That is why Obama's election is but the first step to restoring civil liberties and our Constitutional order, but far from sufficient.

UPDATE IV:  To clarify one point:  Executive Orders are similar to signing statements in that neither are constitutionally invalid per se; both have legitimate functions; but both have been expanded far beyond their legitimate use and are now an instrument for abuse of power.  For reasons that I discussed yesterday with the ACLU's Anthony Romero, there are steps that Obama could legitimately take and probably should take via Executive Order -- including closing Guantanamo and compelling compliance with the Army Field Manual in all agencies, including the CIA.  Both steps would constitute mere reversal and recission of prior Executive Orders issued by Bush.

But promulgating new regulations for off-shore oil drilling, or stem-cell research, or aid to foreign family planning groups, are clearly within the legislative function.  Urging that Obama do those things anyway because you like the outcome is no different, on the level of principle, than those who urged Bush to govern unilaterally because they liked the outcome of his decisions.  Even more so, those who argue that Obama needs unconstrained executive power because of the "financial crisis" are really no different at all than those who supported the Cheney/Yoo theories of executive power on the ground of the Terrorist threat.

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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