Democrats change their mind about executive power

Ross Douthat:

WHEN George W. Bush was president of the United States, it was an article of faith among liberals that many of his policies were not just misguided but unconstitutional as well. On issues large and small, from the conduct of foreign policy to the firing of United States attorneys, the Bush White House pushed an expansive view of executive authority, and Democrats pushed right back — accusing it of shredding the constitution, claiming near-imperial powers and even corrupting the lawyers working in its service.

That was quite some time ago. Last week the Obama White House invoked executive privilege to shield the Justice Department from a Congressional investigation into a botched gunrunning operation by the Bureau of Alcohol, Tobacco, Firearms and Explosives. The previous week the White House invoked powers that President Obama himself had previously claimed to lack, unilaterally revising the nation’s immigration laws by promising to stop enforcing them against a particularly sympathetic population.

Both moves were entirely characteristic of this presidency. Obama campaigned as a consistent critic of the Bush administration’s understanding of executive power — and a critic with a background in constitutional law, no less. But apart from his disavowal of waterboarding (an interrogation practice the Bush White House had already abandoned), almost the entire Bush-era wartime architecture has endured: rendition is still with us, the Guantánamo detention center is still open, drone strikes have escalated dramatically, and the Obama White House has claimed the right — and, in the case of Anwar al-Awlaki, followed through on it — to assassinate American citizens without trial.

These moves have met some principled opposition from the left. But the president’s liberal critics are usually academics, journalists and (occasionally) cable-TV hosts, with no real mass constituency behind them.

The majority of Democrats, polls suggest, have followed roughly the same path as the former Yale Law School dean Harold Koh, a staunch critic of Bush’s wartime policies who now serves as a legal adviser to the State Department, supplying constitutional justifications for Obama’s drone campaigns. What was outrageous under a Republican has become executive branch business-as-usual under a Democrat.

On domestic matters, the liberal silence is even more deafening. It was conservatives who pointed out the dubious constitutionality of Obama’s immigration gambit. Among liberals, it was taken for granted that the worthy ends were more important than the means.

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To some extent the opposition to Bush policies was based on an irrational hatred of him by Democrats rather than a disagreement based on principle.  Transitioning from hatred to reality can be jarring and looks pretty stark in hindsight.

But I find the claim of executive privilege on Fast and Furious the most dubious of Obama's "changes."  Deliberations over who to hire and fire where the President has complete discretion are a long way from refusing to produce documents that may show a crime has been committed to cover up a political embarrassment.