Our Strange Constitution

I’m not even slightly surprised to find out that the Obama administration has some kind of process in place to assassinate American citizens who it’s decided are in cahoots with terrorists. I was always raised to appreciate the “out of control spies” genre of movies and to assume that they represent a certain level of insight into what’s going on. But the story reflects a pretty odd feature of our political system, namely that the president seems most empowered in precisely those areas of governance that ought to give you the most concern about tyrannical abuses.

If the President wants to do something like implement a domestic policy proposal he campaigned on — charge polluters for global warming emissions, for example — he faces a lot of hurdles. He needs majority support on a House committee or three. He also needs majority support on a Senate committee or three. Then he needs to get a majority in the full House of Representatives. And then he needs to de facto needs a 60 percent supermajority in the Senate. And then it’s all subject to judicial review.

But if Scooter Libby obstructs justice, the president has an un-reviewable, un-checkable power to offer him a pardon or clemency. If Bill Clinton wants to bomb Serbia, then Serbia gets bombed. If George W Bush wants to hold people in secret prisons and torture them, then tortured they shall be. And if Barack Obama wants to issue a kill order on someone or other, then the order goes out. And if Congress actually wants to remove a president from office, it faces extremely high barriers to doing so.

Whether or not you approve of this sort of executive power in the security domain, it’s a bit of a weird mismatch. You would think that it’s in the field of inflicting violence that we would want the most institutional restraint. Instead, the president faces almost no de facto constraints on his deployment of surveillance, military, and intelligence authority but extremely tight constraint on his ability to implement the main elements of the his domestic policy agenda. I think it’s telling that the US has generally not advised countries engaged in a democratic transition (think Germany and Japan after WWII or Poland, Hungary, Czech Republic, etc. after the fall of Communism) to imitate our form of government.