Drone policy isn’t the only area where Obama has stretched his authority

Jim Huffman Dean Emeritus, Lewis & Clark Law School
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Occasionally, even in today’s hyper-partisan political climate, conservatives and liberals find something to agree about. That President Obama might be abusing his authority in ordering drone strikes on American citizens, without congressional or judicial review, turns out to be one of those things. Members of Congress on both sides of the aisle have challenged the president to explain why he believes he has such authority.

On Wednesday, The New York Times proclaimed that the dispute over President Obama’s authority to order the killing of American citizens believed to be engaged in terrorism against the United States “goes to the fundamental nature of our democracy, to the relationship among the branches of government and to their responsibility to the public.” On Thursday the paper argued that “Mr. Obama has stretched executive power” in claiming this authority. Good for the editorial board of the reliably pro-Obama New York Times.

Meanwhile, the American Civil Liberties Union and the Center for Constitutional Rights have filed a lawsuit claiming that the drone killings of U.S. citizens Anwar al-Awlaki, Samir Khan and 16-year-old Abdulrahman al-Awlaki violated the constitutional guarantee of due process. Surely the ACLU and CRC have this one right. Even madmen who shoot school children in cold blood are presumed innocent until proven guilty, unless, of course, they kill themselves and preempt due process.

The Times, ACLU, CRC and members of Congress are raising the right questions. Even if we accept that the president’s powers are at their greatest in matters of foreign affairs and national security, it is reasonable to suggest that drone strikes on American citizens go too far, and that the Constitution doesn’t allow the fundamental principles of liberty and the separation of powers to be balanced away — without explanation — at the sole discretion of the president.

Liberal and conservative critics of the administration’s drone policy have observed that President Obama is looking a lot like President George W. Bush in this controversy. But what has not been much observed is that those on the left who argue that the president is exceeding his authority in this case have sat silent while the same president has “stretched” his authority in so many other ways.

Obama’s we-can’t-wait-on-Congress mantra has been part of his permanent campaign ever since Democrats lost control of the House. Federal agencies have ginned up thousands of pages of regulations with doubtful congressional authorization and with fulsome praise from those, including the members of The New York Times editorial board, who agree with the president’s policy goals. When a federal circuit court recently held that the president exceeded his authority in making appointments to the National Labor Relations Board, the left objected en masse, on the grounds that the decision was an outrageous deed of judicial activism. It seems unlikely that the same folks will rise in unison to object if a court eventually finds that the president has exceeded his authority in ordering drone strikes on American citizens.

I have no sympathy for bad guys — American citizens or not — who seek ill for America. But in a constitutional republic founded on the principle that government’s central responsibility is to protect and preserve the liberties of it citizens, there can be no place for an all-powerful executive. That’s true when it comes to foreign policy, and it is even truer when it comes to domestic policy, where the president’s powers are more circumscribed. As Justice Felix Frankfurter warned in condemning President Truman’s seizure of the nation’s steel mills during the Korean War, “The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.”

Jim Huffman is the dean emeritus of Lewis & Clark Law School, the co-founder of Northwest Free Press and a member of the Hoover Institution’s De Nault Task Force on Property Rights, Freedom and Prosperity.