A Limitless Presidency

Obama has waged a successful assault on American liberty and the War Powers Act.

President Barack Obama wields the power of life or death over every inhabitant of the planet. He claims extensive presidential power in both foreign and domestic affairs. Thereby hangs an alarming tale of presidential usurpations, congressional effeteness and popular indifference.

Obama stumbled in reviving the economy. He floundered in balancing the budget. He squandered large sums and many lives on a fool's errand in Afghanistan. But his assault on American liberty has been a smashing success.

Flouting due process and the Constitution's separation of powers, President Obama daily promulgates a drone-strike list—essentially, a secret assassination list—which has included U.S. citizens. In doing so, he plays prosecutor, judge, jury and executioner. The architects of the Constitution decried that combination of powers as the very definition of tyranny. Obama employs this lethal force off the battlefield and against persons noncomplicit in the 9/11 attacks, in defiance of the narrowly drawn, congressionally enacted Authorization for Use of Military Force resolution of 2001.

Predator drones are Obama's signature weapon in this pursuit. He conceals from the American people, Congress and the judiciary the intelligence profiles and other data used to select drone targets. Postmortems are not conducted to determine whether the victims were imminent threats to American lives or innocent civilians. Just one example is the teenage son of Anwar al-Awlaki, a U.S. citizen, who was vaporized in Yemen.

President Obama’s uncircumscribed power to kill through drone strikes sits alongside numerous other usurpations. He maintains that entrustment of “executive power” to the president in Article II crowns him with authority to commence war at any time, in any place, for any reason. He unilaterally initiated war against Libya in violation of the Constitution and the War Powers Resolution. And don’t expect Obama to seek congressional authorization, as required by Article I, section 8, clause 10, if he chooses to unleash war against Iran, Syria, Yemen, Mali, Pakistan, North Korea or China. Obama also insists that the so-called “war against international terrorism” is perpetual and occupies every square inch of the planet where he may use military force.

His overreach in the name of security also results in numerous violations of law. Obama claims the power unilaterally to initiate cyber warfare in the United States or abroad. He claims authority to deploy the military in the United States to detain American citizens indefinitely at Guantanamo Bay without accusation or trial. He prosecutes civilian crimes before military commissions, which many consider a violation of due process. He conceals information from Congress necessary for oversight of the intelligence community and the military by invoking inflated claims of executive privilege or national security. He relies on a secret interpretation of the Patriot Act to collect intelligence on American citizens.

At home the president takes a blithe attitude toward the tradition of separation of powers. He invokes state secrets to block judicial redress for constitutional wrongdoing—for example, government-sponsored murder, torture, or kidnapping related to the war on terror. He issues presidential signing statements denying congressional authority to restrict his discretion in foreign affairs. In such matters, Congress has surrendered without a whimper because of party loyalties and a cowardly craving to escape accountability.

In domestic affairs, Obama makes appointments without Senate confirmation in violation of Article II, section 2, clause 2. He flouts legislative directives in administering the Affordable Health Care Act, the No Child Left Behind Act of 2001 and the Temporary Assistance for Needy Families program by granting wholesale waivers or otherwise. He scorns the presidential obligation in Article II, section 3 “to take care that the laws be faithfully executed” by refusing to prosecute torture or warrantless interceptions of emails and phone calls of American citizens; by refraining from deporting known illegal aliens under federal law to obtain a perceived political advantage; and by declining to defend the Defense of Marriage Act in litigation despite its substantial constitutional credentials. He invokes executive privilege to obstruct congressional oversight of the Department of Justice and deficient White House security protocols.

President Obama believes in secret government unaccountable to Congress, the courts or the American people. If he announced he was suspending the Constitution and ruling by decree to defeat international terrorism, it wouldn’t be fanciful to predict that Congress and the American people would simply acquiesce like vassals. As the historian Tacitus observed, when Republics yield to tyranny, “the worst crimes are dared by a few, willed by more, and tolerated by all.”

Bruce Fein was associate deputy attorney general under President Reagan and is author of American Empire Before The Fall. His current law practice is Bruce Fein & Associates, Inc.