Question beggars can't be question choosers

Emperor Ninkō of Japan (1800-46). Wikipedia.

Shorter Ross Douthat, Apostolic Nuncio to 42nd Street, "The Making of an Imperial President":

How did Barack Obama, campaigner against the imperial presidency, turn into the autocrat of America, ruling our country as Nero ruled Rome?

1. The public keeps expecting him to do something, because they're so weird nowadays.

2. The opposition doesn't know what it wants and is hard to deal with, leaving him to be an autocrat by default.

3. He wants to be the liberal Ronald Reagan, which makes him the liberal Richard Bruce Cheney.

Nice to see you acknowledging, Monsignor, that emulating Ronald Reagan is an anti-democratic approach, and confirming our fears that Cheney exercised imperial power during the so-called "Bush administration".

That said, there are a couple of things wrong with the picture presented in this column.

To begin with, that notion of an "imperial presidency", devised by Arthur Schlesinger in his 1973 book to characterize the Nixon administration, can only apply to the Obama administration by means of some desperate conceptual smushing.

The imperial presidency as Schlesinger saw it was the consequence of the development of the West Wing into a kind of hive of courtiers, constantly growing in personnel and power, under the president's direct supervision, with the acquiescence of a generally passive Congress, and in the name of expanding America's reach around the world, which finally enabled Nixon to conduct secret wars in Southeast Asia and Ethiopia. The story of Obama's presidency in this dimension is one of retrenchment, of constantly shrinking executive power, first with the fiscal crisis created by the mortgage emergency and then with the Senate's inability to approve his nominees, and finally with a Congress unable to do anything but obstruct; and of withdrawal—too slow, perhaps, and punctuated by moments of regression—from military adventure.

New York Times, November 8 2014.

Douthat wants to raise the ghost of imperial Rome, and the military chieftain, Imperator, creating a court around himself while the ancient Senate languished in impotence, and it doesn't apply.

Even as he has maintained much of the Bush-era national security architecture, this president has been more willing to launch military operations without congressional approval; more willing to trade in assassination and deal death even to American citizens; and more aggressive in his war on leakers, whistle-blowers and journalists.

"Maintained much" is another way of saying "got rid of some", or, more concisely, "shrank". We certainly might have seen a great deal more shrinking if Congress had been willing to cut the Defense budget in 2011, or honor Obama's request to build down the CIA's military capacity, or adopt the bill supported by the president to reform the NSA. We don't know how willing the Bush administration might have been to launch military operations without congressional approval, because Congress seems to have given them a blank check to conduct them wherever they want, including places certainly not envisaged by the authors of the original AUMF such as the Philippines, Somalia, Chad, Mauritania, Mali, and Pakistan. The Obama administration has conducted exactly one military operation under the claim that it does not need congressional approval, in Libya, and has acknowledged the need for congressional approval everywhere else (they argue they have congressional authorization for ongoing operations in Iraq and Syria), while the Bush administration said they didn't need it at all for the "War on Terror", in no uncertain terms. There's really no comparison.

I find it hard to understand how the Obama administration has been more willing to "trade in assassination and deal death" in its protracted withdrawal from the Bush wars in Afghanistan, Iraq, and Yemen. The targeted assassination program is larger than it was under Bush because of the decreased use of untargeted assassination, also known as killing everybody within reach. I don't like killing anybody, but better Anwar al-Aulaqi (exactly one assassination of an American citizen and, as I always say, his citizenship seems to me completely beside the point) than a wedding party, or crowds caught as they run away from a bombed village, or drivers who look frightening for undefinable reasons to the Blackwater workers managing a checkpoint. There are no even suggestive numbers for how many deaths the US forces have "dealt" but they are certainly far fewer under Obama than Bush, given that the vast majority of total civilian deaths inflicted by all parties in the GWOT have been in Iraq: 103,548 from 2003 to 2008 vs. 12,729 from 2009 to US withdrawal in 2011 (Iraq Body Count figures; for comparison purposes, in Afghanistan from 2003 to 2008 maybe 8000 civilians were killed, and not many fewer after Obama took office, but it seems that under Obama virtually all of those were killed by Taliban: like, 1,319 civilians killed in 2013, but just 14 of them by US forces).

For the "war on journalists", I'm conflicted, but it's disingenuous to cite an angry article by Emily Bazelon from May 2013 without noting that Bazelon has developed a much less outraged attitude since then, writing in June 2014 that she sees a positive change in the administration's views—

The Obama administration has prosecuted more leak cases than any other presidency—eight, compared with three for all the other administrations put together. That’s not a record Holder or the president lately appear to be proud of. The reason Holder was meeting with journalists last week is that he’s trying to show he’s sensitive to their concerns about being made to testify or hand over their records.

This is a switch. 

—and expressing enthusiastic support for the media shield law that the White House keeps pushing and the Congress keeps failing to pass; once again not showing up for work as the executive attempts to become ever less imperial.

Holy Roman Emperor Rudolf II as Vertumnus, God of Vegetables, by Giuseppe Arcimboldo, ca. 1590. Via Wikiart.

At the same time, he has been much more aggressive than Bush in his use of executive power to pursue major domestic policy goals — on education, climate change, health care and now most sweepingly on immigration.

Douthat is saying two different things here: that Obama is more aggressive than Bush in pushing domestic policy goals, which is certainly true—he has some domestic policy goals, which Bush did not once he was finished with the tax cuts, so that's a big difference—and that he "uses executive power" to do it, as if he had some other kind of power (Green Lantern powers, with his special ring?) that he could deploy more suitably.

What he means, as you see from the link to Andrew Prokop at Vox, is the center of the case for Obama not as imperial president but rather monarchical president, less Augustus than Charles I insisting on the royal prerogative in his struggle with Parliament; that is, the story that Obama refuses to carry out the law as passed but insists on carrying them out his own weird way, turning the congressional lemon into an unexpected flavor of lemonade. He's accused of using executive power to perform a legislative task or make his own law.

Two of the items Prokop lists are things I'm rather opposed to myself.

First, Obama's delay of the mandate under the Affordable Care Act for businesses with more than 100 employees to buy them health insurance (the mandate for businesses with 50 to 100 employees is being delayed even longer). This is the key provision of the Act, along with the great Medicaid expansion, that makes it absolutely not Republican—it's one of the eight provisions in the famous Massachusetts bill that Romney vetoed (the Massachusetts legislature overrode, and now Romney takes the credit for it, but that's another story). Employers had four years to get ready for it, dammit, and letting them off the hook for an extra year was a bad idea. Obama obviously did it simply to turn down the volume of criticism as the other provisions were coming into force.

But it wouldn't occur to me to say it was illegal. The only people saying that are people who are themselves opposed to the employer mandate and would like to see it delayed not for a year but for all eternity. That's why Congress didn't force him to institute in on schedule last year, because they didn't want him to. It's one of the reasons the House has, instead, attempted to "repeal" the ACA 50 or however many it is by now times.

Second, Secretary Arne Duncan's use of his waiver authority under the No Child Left Behind Act to pressure state education departments to adopt certain reforms (or rephorms, as I prefer to call them). The original NCLB passed in the early Bush administration laid out certain goals that states would have to attain or lose the federal funding they were getting under the Act. Since the goals were preposterous and nobody was going to be able to meet them, they were all begging for waivers, and Duncan set his own benchmarks, not part of the bill, for whether they could have them or not—e.g., tying teacher evaluations to student test scores in a particular way, or using Common Core standards. I don't approve of it because I don't approve of Duncan's proposals, because of their connection to high-stakes testing, deprofessionalization of teachers and concomitant union-busting, and favoritism for vicious companies from Pearson to old Neil Bush (I kind of like the Common Core standards themselves as far as I understand them).

But again, is it illegal? Since the legislation doesn't spell out the criteria for waivers, should Duncan be awarding them arbitrarily on the basis of a coin flip? If he gave a waiver to anybody that asked, that would really be refusing to enforce the law. His approach, defective as it may be, is an attempt to work toward achieving goals of the law when actually achieving them is (unfortunately) impossible. And again, if Congress doesn't like it they can always work up a fix, the way Congresses have always done in the past. But Congress doesn't show up on this issue either.

For the third issue, immigration, I'm completely in support of the president. As with the NCLB waivers, it is literally impossible to follow the law entirely: there are just way too many people who would need to be put through a due-process deportation proceeding, they cannot all be deported, and nobody in fact wants them all deported either, except for a few lunatic gringos.

To the extent that the rule of law is in jeopardy here, it is because the scope of federal law has grown so vast that no administration can target more than a small percentage of violations, thereby unavoidably giving the president broad discretion. (Ilya Slomin, quoted by djw at LGM)

Unlike with the NCLB waivers, Obama's ideas on who needs especially to not be deported—parents of US citizens, for instance, or Dreamers over the age of 31—are very acceptable ones. Some criteria must be found to decide who gets deported and who doesn't, and if Congress wants to weigh in on the criteria it has not only a right but an obligation to do that. But Congress isn't there, refusing to pass a comprehensive immigration bill for years. Some of them like to tell you, oh, we were just about to do it when that mean Obama came and spoiled it all. Really?

Overlooked? In NBC/WSJ poll, 74% support immigration plan like one passed by Senate 500 days ago. But Boehner won't allow vote in House.
— David Axelrod (@davidaxelrod) November 21, 2014

Douthat mentions a fourth issue that isn't covered in the Prokop article he links to, Obama's executive action over climate change. He doesn't link to anybody because there's honestly not a respectable place to link to. Obama's work on combating greenhouse gases—

The day after the November 2010 elections made clear President Obama’s greenhouse-gas legislation was doomed, he vowed to keep trying to curb emissions linked to global warming. There’s more than one way of “skinning the cat,” he told reporters.

Since then, Obama has used his executive powers — including his authority under the 1970 Clean Air Act — to press the most sweeping attack on air pollution in U.S. history.

—is so entirely within the authority of the presidency, and so important in the light of congressional inability to act on it, and so potentially popular, that you won't find anybody other than a rightwing psychopath objecting to it. Leaving open the question of why Douthat even mentioned it: is it a little dog whistle we Times readers are meant to miss? (Somehow related to the Greenwaldery in the foreign policy bit.)

There's no evidence, in any case, of anything "imperial" about Barack Obama, so that the premise on which the column is built is just empty. And in this way there is no reason to look at Douthat's explanations of why Obama is an imperial president, because he isn't. I mean, it's like why did Beethoven write the first movement of the Moonlight Sonata in G? (It's in C# minor.)

You know who else had a brief and undistinguished career as a Senator, right?

I would like to note Douthat's definition of outlawry:

to act, even in violation of laws or norms or Burkean traditions

Like Article II section 3 says, "He shall take care that the laws be faithfully executed, along with the norms and the Burkean traditions."

And Obama's refusal to compromise, which is just like transformative Reagan unless it isn't:

Obama never really looked for domestic issues where he might be willing to do a version of something the other party wanted

Almost Noonanesque in its spectacular amnesia ("Have you ever heard the expression, 'Grand Bargain', Mr. Douthat?" "No, no, I can't recall that I have.").

he has chosen to betray himself in a different way, by becoming the very thing that he once campaigned against: an elected Caesar, a Cheney for liberalism, a president unbound

Yes, the Monsignor is out of his mind now. The pressure got to be too much. I blame Pope Francis.

Emperor Penguin. Via CoolAntarctica.