Restraint on Presidential Power and Restraint on Opposition

Make America Great Again

I generally like following Jennifer Rubin, anti-Trump conservative who is fast becoming a liberal.  But I will admit to a certain ambivalence about this column, a list of advice on how liberals and anti-Trump conservatives can find ground. 

Certainly I prefer it to the advice of more anti-anti-Trump types whose advice tends to be (1) stop criticizing Donald Trump and (2) adopt the Republican platform.  That is simply an invitation to surrender.

Rubin's advise is more useful and focuses on restoring procedural norms that I am entirely in favor of.  But I am troubled by the conceit, so common among never-Trump conservatives, that conservatives before Trump were opposed to out-of-control executive power, and that Obama's unilateral use of executive power was something unprecedented:

Until Trump came along, Republicans were horrified by sweeping executive orders, rule by administrative directive (e.g. modifying the Affordable Care Act without Congress), international executive agreements instead of treaties (e.g. the Joint Comprehensive Plan of Action) and executive-branch hubris in the face of congressional oversight (e.g. Operation Fast and Furious).

I, and I think most liberals, have trouble taking this seriously in light of actual, real world history of the Republican party.  Certainly William Barr and his history of extreme views of executive power have been part of the Republican party for a long time.  Antonin Scalia has been a longstanding champion of presidential authority from the bench.  To say nothing of George W. Bush, and his advisers, John Yoo and David Addington, whose theories of the "unitary executive"  essentially said that the President's power is absolute and cannot be constrained by law, so long as he says "national security" first.  Acknowledge this history, and maybe I will take your complaints about Obama's overreach seriously.  

Second, Obama's executive overreach has to be seen in the context of a Republican party determined to reject any sort of cooperation in favor of a determination to make him fail -- regardless of the consequences.  Any call for a President to respect the limits of executive authority has to be matched by a call to the opposing party to act within the appropriate limits of a loyal opposition.  So what about Rubin's examples?

I will confess to not being familiar with the in's and out's of Operation Fast and Furious.  But the following appears to apply: (1) the Obama Administration provided over 7,000 pages of documents to Congress, (2) Attorney General Eric Holder was held in contempt for claiming executive privilege for another 1,300 pages, (3) the contempt occurred in 2012 and was the Obama Administration's first invocation of executive privilege.  That being said, I do not know enough to evaluate the merits of the Obama Administration's overall position.

The modification of the Affordable Care Act is more straight forward.  Like all major, complex pieces of legislation, the ACA turned out to have problems, such as regulatory changes that cancelled existing policies and failure to mention subsidies in states that did not build exchanges.  Normally, problems like this can be ironed out by modifying the law.  Republicans in Congress, however, made perfectly clear that they were not going to correct any problems with the ACA, no matter how many people were hurt as a result.  In fact, they saw people being hurt as a feature, not a bug, because it would increase pressure to repeal the Act and were dead set against the simplest modification that might make it run more smoothly.  So Obama stretched the executive's regulatory powers to deal with these defects.  

As for entering international executive branch agreements, the reason is much the same.  The Senate was unwilling to ratify any treaty Obama entered into. In case of an impasse between the President and Senate on making treaties, there are at least three options.  If the Senate has specific objections to specific provisions in a treaty, by all means the President should seek to address these concerns.  More complex is a case in which the Senate thinks no treaty can ever be appropriate. 

I assume Rubin is speaking primarily about Obama's Joint Comprehensive Plan of Action (JCPOA) with Iran. There was a clear policy difference here.  Senate Republicans were opposed to any sort of diplomacy or agreement with Iran that stopped short of unconditional surrender on Iran's part and otherwise believed that negotiations and agreements had no legitimate place in our tool kit.  Obama, by contrast, believed that Iran's nuclear program was an intolerable threat, and that curbing it was essential, even of our other problems with Iran were not resolved. 

Cases like this are genuinely difficult, and I suppose one can make at least the argument that if the Senate says it will not approve any treaty whatever with a country, the President should obey and refrain from any attempt at making one.  On the other hand, the President is normally in charge of US foreign policy and normally has broad discretion to address what he sees as an intolerable danger.  And Rubin has no answer whatever as to what a President should do if the Senate makes clear that it will reject any treaty whatever that he enters into, just to deny him the win.  What is a President supposed to do in such a case, refrain from any diplomacy whatever?