Obama and McCain on executive power.

The law, lawyers, and the court.
Sept. 19 2008 1:39 PM

The Modesty Contest

Where Obama and McCain stand on executive power.

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There's a political explanation for all this, too, of course—McCain was moving to shore up his base, at presumably little cost to the center. Neither candidate has paid a real price for the congressional tap dance over wiretapping. And on other aspects of executive power, we still have solid-seeming statements that make them each seem un-Bush-like. Here's a roundup from Pro Publica. Here are Obama's answers to the Savage questionnaire, to complement McCain's.

Some of this makes for reassuring reading: McCain pledges never to use a signing statement—the somewhat symbolic but nevertheless crazy-making evidence that the Bush administration was doing its utmost to supersede Congress. McCain also says that if Congress definitively says that a "specific interrogation technique" is off-limits, the president can't approve its use anyway. But McCain also declines to name a single use of executive power by the Bush administration that is unconstitutional or even just "a bad idea." And in May he went on his infamous tear about the federal judiciary, blasting the judges' "common and systematic abuse of our federal courts"—never mind that at this point the majority are Republican appointees. (If anyone was wondering whether McCain would toe the line and appoint archconservative justices in the model of John Roberts and Samuel Alito, as he'd promised, this should have quelled such doubts.)

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As for Obama, he has been consistently strong in saying the president can't hold detainees he decides are enemy combatants without charges, and on preserving the right to habeas corpus—the means by which the Guantanamo detainees might actually challenge their enemy combatant status in court someday. The Bush administration has cast all of this as a fight for supremacy between the executive and the courts, so Obama's position would be a major easing of tensions. Obama also told Savage that "the President does not have power under the Constitution to unilaterally authorize military attack in a situation that does not involve stopping an actual or imminent threat to the nation." And he said the president can't ignore Congress on troop deployments, while McCain complained about Congress micromanaging wars. Given how imperial the American presidency has become over the last half-century, Congress isn't good at taking power back for itself. So, Obama looks like he has the legislature's back.

But I'm puzzled about Obama's unwillingness to take a stand against the Bush administration's latest bid to exit with one last burst of executive prerogative-taking: the bill to renew the Authorization of Military Force. As Neal Katyal and Justin Florence pointed out in Slate this week, the AUMF of 2001 has been the main underpinning of the worst Bush excesses. And the new law doesn't just restate congressional support for fighting a war against al-Qaida and Co. It also "reaffirms" what would really be a new power: that "the President is authorized to detain enemy combatants in connection with the continuing armed conflict with al Qaeda, the Taliban, and associated forces, regardless of the place of capture, until the termination of hostilities."

Katyal and Florence explained why this expands the scope of the 2001 AUMF, allowing the president to do what no court has ruled he can: capture an alleged enemy combatant on American soil and whisk him away, without charges, until the end of a war that has no clear end. Opposing this should be a no-brainer for Obama, but when I called his advisers, I got only a hands-off, "we don't want to get into it" response. The campaign said it was trying to stay on message. For sure there is better political hay for a Democrat to make this week. And the McCain campaign didn't call me back at all. But it's a reminder that candidates don't win by talking boldly about the presidency as a self-effacing institution. Presidential modesty can be a hard virtue to sell.

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