History will likely ponder long before rendering a clear verdict. The best we can say now is that, even for those like me who admire Barack Obama, the constitutional record is disturbingly mixed. Obama leaves the Constitution weaker than at the beginning of his terms. It now will pass into the hands of a chief executive who appears to have no respect for its limits. [...]
Compared with most presidents of the past half-century—and especially with his predecessor, George W. Bush—Barack Obama has in fact been quite reticent about asserting inherent “executive power” under the Constitution. Consider the use of “signing statements”—documents issued by a president when signing a bill, sometimes indicating that the executive branch will refuse to follow parts of the new law because it believes them unconstitutional. George W. Bush issued more than 160; Obama, in the same time period, 31. [...]
Obama has never formally subscribed to this strong-executive theory. On paper, at least, he has insisted that he is working hard to fulfill the intent of Congress as expressed in statutes. This is a strategy I call “aggressive compliance”—it pushes the language of a statute as far as it can go in order to avoid a constitutional claim. In practical terms, the result is often the same—the executive gets its way––but there’s no corresponding assertion that Congress has no power. If, by some bizarre series of events, Congress collected itself to change a statute, and managed to overcome a presidential veto of that change, then, Obama would say, of course he would change his actions. [...]
It’s better than simply proclaiming a president beyond the law. But it sometimes skates close to the edge of legality. Consider the administration’s claim that it could, without Congressional authorization, commit U.S. naval and air forces during the 2011 intervention in Libya. The action seemed to violate the 1973 War Powers Resolution, which requires a president to notify Congress before introducing U.S. forces into “hostilities,” and seek permission if that intervention lasts more than 60 days. Many presidents have claimed that the Resolution was an unconstitutional limit on their power. Obama instead issued a careful opinion admitting that the Resolution was valid—but suggesting that more than 100 cruise missile strikes, and dozens of air missions, were not, somehow, “hostilities.” It was too clever by half, and it is a lasting blot on Obama’s constitutional copybook.
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