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.

John McCain, Barack Obama. Click image to expand.
John McCain and Barack Obama

How far apart are Barack Obama and John McCain on the expansion of executive power—whether or not to shrink down the presidency on steroids that has characterized the Bush administration? What's the evidence that one or the other would pump the other branches of government back up rather than pounding them down?

It's an important question that's become ever harder to answer over the last couple of months. Last December, in response to a hugely useful questionnaire in the Boston Globe by Charlie Savage, both candidates seemed resolute about turning aside some of the biggest power grabs of the Bush years. But since then, John McCain has moved closer to the Bush mantra so as not to spook his base, though he still stresses his interest in working with Congress. Barack Obama, on the other hand, has attacked the discredited Bush theories behind the executive-power boomlet, as you'd expect of the candidate of the opposing party. But he also has let pass specific chances to distance himself definitively. From that you can conclude either that taking on sprawling executive power doesn't make for riveting campaign fare, or that, as Jack Balkin has argued at Balkinization, both parties continue to see the attraction of a muscular presidency. Or both.

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The evidence that Obama is tacking a bit toward a more powerful presidency comes from his reversal on warrantless wiretapping. This is the July law that approved the National Security Agency's decision to bypass the court set up by the Foreign Intelligence Service Act by permitting eavesdropping on phone calls and e-mails that are in part domestic. FISA was expanded in this fashion based on the Bush administration's argument that the war on terror gives it leeway to brush past Congress and the judiciary at its choosing. The new law for which Obama voted effectively gutted the court and the warrant protections enshrined since 1978 by FISA. Obama's turnaround enraged some civil libertarians, for good reason, and made other liberals worry more broadly that he'd gone squirrelly on them. But the campaign sold Obama's vote as a political necessity: a shield against the standard Republican attack that Democrats are soft on national security.

And meanwhile, McCain was running into the arms of the right. As Glenn Greenwald has pointed out at Salon, back in December, McCain drew a sharp contrast between himself and Bush on wiretapping in answering that questionnaire on executive power in the Boston Globe (at the very least a great historical resource at this point). At the time, McCain said that in some instances, statutes (meaning FISA) "don't apply, such as in the surveillance of overseas communications"—not domestic-to-foreign calls and e-mails. McCain continued, "Where they do apply, however, I think that presidents have the obligation to obey and enforce laws that are passed by Congress and signed into law by the president, no matter what the situation is."

But then in late spring, the warrantless-wiretapping bill surfaced, with its bid to let the telecom companies off the hook for having given customer records to the NSA in probable violation of FISA. Andrew McCarthy of the National Review started beating up on McCain after the campaign suggested that McCain didn't think the telecoms deserved full amnesty, and a Washington Post headline asked "For McCain, a Switch on Telecom Amnesty?" So, McCain sent McCarthy one reassuring memo, and when that didn't do the trick, he fired off a second one. By that point, it was hard to recognize the civil-libertarian McCain of the Charlie Savage questionnaire, as McCain blasted "the ACLU and trial lawyers" and said there was no need for further investigation of the NSA, the telecoms, or anyone who'd ever used a wiretap.

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