Orin Kerr on Obama’s dictatorial powers

Orin Kerr of the Volokh Conspiracy asks his conservative brethren to consider whether they are willing to attribute to Barack Hussein Obama the same near-dictatorial powers they claimed for George Walker Bush.

Volokh Conspirator Orin Kerr writes:

Just A Reminder, for the folks who thought that President Bush had the power to arrest anyone in the United States and detain them as “enemy combatants” without any hearing as part of his Commander-in-Chief power, that this power is now enjoyed by Barack Hussein Obama. That’s right: A liberal with the middle name “Hussein” who pals around with terrorists and is adored in Paris now has all that Commander-in-Chief power. And if he decides that you’re a threat to the nation, he can order you seized and locked up indefinitely. Congress can’t get in B. Hussein Obama’s way: As the FISA Court of Review emphasized back in 2002, Congress “could not encroach on the President’s constitutional power.” And that meddling Supreme Court can’t stop “The One,” either. Or at least that’s your view of things.

Of course, late conversions into believers of checks and balances are more than welcome.

Not only are such conversions welcome, I think we can safely expect them to show up in hordes. One advantage of a Democratic Presidency is the restraint it exerts the Republican impulse toward monarchism.

And to those who think, or claim, that the Red and Blue teams are morally equivalent, I offer a challenge: see if you can find a single liberal or Democrat who will argue that Obama now has the powers (to detain without trial, to torture, to defy Congressional oversight with sweeping claims of executive privilege, to order prosecutions of political opponents and fire prosecutors who refuse to comply with those orders) that we denied Bush had* when he was President.

But of course opposing those claims was easy for us, and we’re not likely to confront the question of what to do when the shoe is on the other foot because Obama is just as unlikely to claim such powers as we would be to support him if he did. All honor to Orin and the rest of the Faithful Remnant, who argued against claims of dictatorial power even when made by a President whose policies they generally supported.

*Update A reader notes that while the Blue team vigorously “denied” that Bush legitimately had those powers, we mostly lacked the will and capacity to “deny” him the capacity to exercise those powers. Too true.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com