The following editorial appeared in the St. Louis Post-Dispatch:
“I was a constitutional law professor, which means unlike the current president I actually respect the Constitution.” — Barack Obama, March 30, 2007
Five years on, that claim made by presidential candidate Barack Obama has begun to sound a little shaky.
First there was his administration’s tacit embrace of the unitary executive claims of the Bush administration to wage a semi-secret war-by-drone. Now the Obama administration has expanded Bushian secrecy by refusing to confirm or deny the existence of CIA drone operations about which it previously boasted.
And last Monday came the president’s startlingly inept claim that the “unelected” Supreme Court would be taking an “unprecedented, extraordinary step” if it overturns a law (i.e., health care reform) duly passed by Congress.
Professor Obama surely would have known better.
Mr. Obama does not ordinarily misspeak. Indeed, he parses his language excruciatingly carefully. His remarks about the court on Monday were so out of character that they suggest one of two explanations:
One: He was frustrated by the justices’ questioning in the previous week’s oral arguments on challenges to the Affordable Care Act. The justices’ questions suggested they didn’t understand the issues at hand. The famously verbose Justice Antonin Scalia seemed alarmed that he might have to read a 2,700-page bill.
Two: The president has decided to run against activist judges in the fall campaign. This is something Republicans ordinarily do, but there’s nothing to say a Democrat can’t do it, particularly as Supreme Court justices tend to be a president’s most enduring legacy.
Whoever is elected in November almost certainly will have to replace liberal Justice Ruth Bader Ginsburg, who is 79 and recovering from pancreatic cancer, and perhaps two conservatives, Justice Scalia, who is 76, and Justice Anthony Kennedy, 75.
On Tuesday, Attorney General Eric Holder tried to walk back his boss’s unfortunate statement from the day before. He acknowledged the court’s right to interpret laws, but asserted that they are “fairly deferential” when it comes to overturning statutes passed by Congress. Perhaps, but it is not unknown, surely not unprecedented and wholly in keeping with the intent of the framers of the Constitution.
Mr. Holder also has played a key role in defending, though not fully and frankly, administration policies on drone warfare and the targeted execution-by-drone of an American citizen working for al-Qaida.
The war on terror has seen the military and the CIA collaborate in ways not seen since Operation Phoenix in Vietnam. When CIA director Leon Panetta was named Defense Secretary last summer, he was replaced at the CIA by Gen. David H. Petraeus, the country’s best-known solider.
Both the Joint Special Operations Center and the CIA maintain overlapping “kill lists.” Both have fleets of Predator and Reaper drone aircraft. Mr. Obama himself openly discussed the program in January in an Internet forum.
But officially the program doesn’t exist. That’s the excuse the CIA is using to avoid disclosing records in a lawsuit brought by the American Civil Liberties Union. To acknowledge its existence could reveal critical secrets, you see, even though Mr. Panetta joked last October that as Defense Secretary, “I have a helluva lot more weapons available to me in this job than I had at the CIA. Although the Predators aren’t that bad.”
Lots of yucks, not much transparency. If this were Con Law 101, the administration would flunk.