Getting It Backwards
Obama misunderstands his constitutional role.
Feb 15, 2010, Vol. 15, No. 21 • By JOHN YOO
Obama’s second and even more significant reversal of the presidency’s constitutional position is his hesitance toward, and even retreat from, its core role as the protector of the nation’s security.
Throughout his first year, Obama has placed the national security second to his ambitious plan to remake the American economy and society. Even as Obama delayed and delayed on whether to send 30,000 additional troops to Afghanistan, he retreated from his predecessor’s aggressive strategy against al Qaeda. He remains intent on closing the detention facility at Guantánamo Bay, Cuba, despite the clear and growing evidence that released jihadists have rejoined al Qaeda and were even linked to the Christmas Day bombing attempt. He announced the end of the tough interrogation of al Qaeda leaders that had yielded crucial intelligence on their plans. He announced the transfer of the trial of Khalid Sheikh Mohammed (KSM) and other 9/11-attack plotters from specially created military tribunals to federal court in New York. Sending KSM and the Christmas bomber into the civilian law enforcement system effectively gives the final say over terrorists to the judicial branch, not the commander in chief.
As Hamilton wrote, the presidency was to be the one part of government that could respond with “decision, activity, secrecy, and dispatch” to unforeseen crises, especially war. Borrowing liberally from John Locke, Hamilton argued in The Federalist that the central function of the executive was to be a branch of the government always in being, one that could respond swiftly to emergencies. War would make the most demands on the presidency. “Of all the cares or concerns of government,” Hamilton wrote, “the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand.”
The dependence of executive power on the circumstances was not lost on early observers of the American system. In Democracy in America, Alexis de Tocqueville stated that the presidency would grow with the United States. “The President of the United States possesses almost royal prerogatives, which he has no opportunity of exercising; and the privileges that he can at present use are very circumscribed. The laws allow him to be strong, but circumstances keep him weak.” That would change, -Tocqueville predicted, as America became a great nation. It is in foreign relations “that the executive power of a nation finds occasion to exert its skill and its strength.” If the security of the country “were perpetually threatened, if its chief interests were in daily connection with those of other powerful nations,” Tocqueville continued, “the executive government would assume an increased importance in proportion to the measures expected of it and to those which it would execute.”
Obama, by contrast, has operated the presidency in his first year in exactly the opposite direction. He wants the executive to be a domestic strongman who can speedily dismiss opposition to his health care and economic ambitions. His decisions to try KSM in federal court and to place the Christmas bomber in FBI custody represent an unprecedented effort to leave critical wartime decisions—here, final decisions on the disposition of enemy combatants—up to the other branches.
Obama should take a lesson from his political hero, the last truly great Democratic president, Franklin D. Roosevelt. If World War II had not come, FDR might have ended up an average president. His New Deal, we now know, did not end the Great Depression, though it did wreck his own political party. But FDR joined the pantheon of Washington and Lincoln by foreseeing and preparing for the existential threat posed by Hitler and the Axis powers. As FDR himself said, “Dr. New Deal” had to give way to “Dr. Win the War.”
To save his presidency, Obama should follow the real lesson of FDR and our other great presidents and turn away from the failures of health care reform and nationalization of the economy. He will be remembered if he follows through in Iraq, pursues al Qaeda with the restoration of aggressive measures, and achieves victory in Afghanistan. If he loses in war in favor of an attempt to expand the size of government at home, he will take his place in presidential history alongside Jimmy Carter and Lyndon Johnson, rather than FDR and Ronald Reagan.
John Yoo is a scholar at the American Enterprise Institute and a law professor at the University of California, Berkeley. He is the author of Crisis and Command: A History of Executive Power from George Washington to George W. Bush.
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