Expanding Executive Power

Two recent actions by the White House provide an interesting study in the expansion of executive power.

The first instance is a Federal judge’s decision that the legal reasoning behind the May 2011 drone strike that killed Anwar Al-Awlaki – an American citizen and member of Al-Qaeda – need not be released by the Justice Department. In what she called “a veritable Catch-22,” Judge Colleen McMahon noted that a combination of Constitutional contortions and executive precedent have rendered the Freedom of Information Act petition filed by The New York Times and the ACLU ineffectual. The judge skeptically quoted Attorney General Eric Holder’s assertion that assassinations like that of Al-Awlaki are befitting of “due process,” though not “judicial process.”

Similarly, President Obama employed a signing statement in passing a bill, the National Defense Authorization Act, that strengthens Congress’s power to oversee the transference of prisoners out of Afghanistan and Guantanamo Bay, an ironic impediment to the President’s campaign goal of closing the prison in Cuba.  The President also noted that bill allows Congress to potentially meddle in transferring prisoners out of “hot zones” overseas, and might therefore present a violation of the separation of powers, since it his duty to make “time-sensitive determinations.” To sidestep the difficulty, the administration said it would implement the bill in such a way, so as to “avoid the constitutional conflict” – in effect, override Congress and permit transference of detainees as the circumstances warrant.

Some thoughts:

1. President Bush, considered the consummate interventionist neocon, oversaw about 40 drone strikes. President Obama has authorized about 300. However, Obama’s militant kill percentage is much higher – 89% to Bush’s 67%.

2. President Bush, who advocated smaller government and less Federal involvement, issued 157 signing statements. Obama, a champion of larger government, has issued 21.

3. Signing statements have, since the Reagan administration, expanded from interpretational addenda to conditional statements that place pragmatic limitations on the execution of bills.

4. Congress attained greater power by pushing through the National Defense Authorization Act. But it also permitted the President to further solidify the precedent of signing statements being used as conditional interpretation and enforcement. And, as we’ve seen, executive precedent holds sway.