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Getting It Backwards

By John Yoo, American Enterprise Institute

Democratic postmortems on Barack Obama's disappointing first year in the Oval Office have emphasized, as the president himself did, difficulties inherited from "the last eight years." Republicans, for their part, credit public opposition to Obama's overreaching policies. But a full explanation goes much deeper. Obama is failing because he has turned the constitutional functions of the presidency upside down.

The 2010 State of the Union address nicely summed up Obama's topsy-turvy approach to the presidency. He pressed for a new jobs bill, more domestic spending, and health care nationalization. He attributed his political setbacks not to broad opposition to his domestic ambitions but to "a deficit of trust--deep and corrosive doubts about how Washington works that have been growing for years."

National security amounted to an afterthought. He devoted one paragraph each--out of the approximately 110 paragraphs in the speech--to Iraq, Afghanistan, and terrorism. It is as if Lincoln had spent most of his Inaugural Addresses on the transcontinental railroad and the Homestead Act.

Obama believes the president should lead a revolution in society, the economy, and the political system, but defer on national security and foreign policy to the other branches of government. This upends the Framers' vision of the presidency. They thought the chief executive's powers would expand broadly to meet external challenges while playing a modest role at home.

The latest Democratic president is repeating the mistake of the first. When Thomas Jefferson entered office 210 years ago, Chief Justice John Marshall warned that Jefferson would "embody himself in the House of Representatives." This would "increase his personal power," Marshall predicted, but it would lead to the "weakening of the office of the President." The chief justice meant that his political rival (and distant cousin) would gain power by joining forces with his party's legislative majorities. But the combination would realize the Framers' fear that Congress would come to dominate the executive branch.

Marshall's observation explains much about Obama's first year. By associating himself so closely with congressional Democrats, Obama became responsible for their every misstep. Their reckless overspending and earmarks became his. Their corrupt deal to buy Senator Ben Nelson's support for nationalized health care became his sordid bargain. Their command-and-control approach to global warming, which will set nationwide limits on energy use and industrial production, became his socialist program.

Putting the president's fortune in Congress's hands not only makes for poor politics, it runs counter to the Framers' plans for the office. They saw Congress, not the presidency, as the main threat to the people's liberties. In a democracy, James Madison wrote in The Federalist, "the legislative authority, necessarily, predominates" because it has access to the "pockets of the people." He warned that "it is against the enterprising ambition" of Congress "that the people ought to indulge all their jealousy and exhaust all their precautions."

The Framers expected the presidency to counterbalance the "impetuous vortex" of Congress. A vigorous executive, Alexander Hamilton wrote in The Federalist, would protect against those "irregular and high-handed combinations which sometimes interrupt the ordinary course of justice" and provide security against "enterprises and assaults of ambition, of faction, and of anarchy" which would emanate from the "humours of the legislature." The great threat to the Constitution, Hamilton wrote, was the "propensity of the legislative department to intrude upon the rights and absorb the powers of other departments" such as the executive branch, the courts, and the states. The president's veto would not only protect the executive's constitutional rights from Congress, he wrote, it would also furnish "an additional security against the enaction of improper laws" and allow the president "to guard the community against the effects of faction, precipitancy, or of any impulse unfriendly to the public good."

The initiative to regulate the domestic economy and society--limited as it originally was to have been--rested with Congress. The president was to restrain the legislature when it favored party or special interests over the public good. This was no easy job. To give it institutional backbone, the Framers clothed the presidency with independent election, consistent pay, and control over the execution of the laws. Still, Hamilton could only hope that when the legislature gave in to demagogues or temporary passions, the president would "be in a situation to dare to act his own opinion with vigor and decision." Obama has inverted the presidency in domestic affairs by transforming it from a check into a facilitator of Congress.

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.
2/15/2010