One of the most striking aspects of Barack Obama’s administration is that, after forcefully denouncing George W. Bush’s overextension of executive power in 2008, he then aggressively expanded executive authority himself. According to the New York Times and the Christian Science Monitor, the president now plans to use executive power even more aggressively in the last three years of his second term than he did in his first. The Times reports that Obama plans to “exercise his authority to the maximum extent.” Legal scholar Josh Blackman understandably asks whether they really mean to suggest that “years one through five [of the Obama Administration] were at less-than-maximum executive authority.”
I actually think that Obama will find it difficult to top his previous “accomplishments” in this field, most notably waging war in Libya , without constitutionally required congressional authorization, after he had (correctly) written in 2007 that “[t]he President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” For good measure, the Libya intervention also violated the War Powers Act of 1973. Regardless, it is disappointing that instead of cutting back on Bush Administration excesses, Obama has chosen to double down on them. Not all of Obama’s more controversial uses of executive power are illegal or unconstitutional. But the overall picture is troubling, to say the least.