The Virtues and Vices of Presidential Restraint

William Greider argues in an interesting essay in The Nation that President Obama’s political difficulties are tied to his failure to exercise the full powers of the presidency.

Given the election results, the question Barack Obama has to decide for himself is whether he really wants to be president in the fullest sense.  Not a moderator for earnest policy discussions.  Not the national cheerleader for hope.  Not the worthy visionary describing a distant future.  Those qualities are elements in any successful presidency, and Obama applies them with admirable skill and seriousness. What's missing with this president is power—a strong grasp of the powers he possesses and the willingness to govern the country with them.  During the past two years, this missing quality has been consistently obvious in his rhetoric and substantive policy positions.  There is a cloying Boy Scout quality in his style of leadership—the troop leader urging boys to work together on their merit badges—and none of the pigheaded stubbornness of his “I am the decider” predecessor, nor the hard steel of Lyndon Johnson or the guile of Richard Nixon.

I think there is something to this.  In part in reaction to the excesses of the Bush years and in part because of genuine ideological and intellectual commitment, Obama and his team came to office indisposed towards a robust conception of presidential power.  This attitude extends, of course, to the Obama administration’s approach to counterterrorism.  Even as it has embraced much of the Bush counterterrorism program, it has done so with open regret, and has emphasized its self-restraint.  One sees this, for example, in the administration’s refusal to work with Congress on new detention authorities for fear that Congress might give it more power than it wants; in its apologetic assertion of a perfectly appropriate state secret claim in al-Aulaqi case; in its shyness about relying on or discussing Article II powers for targeting terrorist threats; in its arguments for narrower military powers than courts are inclined to give it; in its acquiescence, despite helpful Article II authorities to the contrary, in Congress’s unprecedented restrictions on the President’s power to transfer enemy prisoners; and more. There are benefits and costs to this approach. On the benefit side, the President has developed a deserved reputation for restraint and commitment to the rule of law.  This is good in itself, and serves him well symbolically at home and abroad.  It also gives him the credibility and trust to carry forth with little controversy many of the counterterrorism tactics that under the less self-restrained Bush administration were deeply controversial.  Such credibility and trust, among other things, inform the extent to which courts defer to and approve wartime presidential actions.  I have no doubt that trust of the administration is one reason why the D.C. Circuit declined to extend habeas corpus review to Bagram, for example. But there are downsides as well.  One downside is a slow diminution of unasserted presidential authority, and a related emboldening of Congress to regulate traditional presidential prerogatives.  Another downside is that the administration’s reputation for restraint has become tied to public worries about whether it is tough enough on terrorism.  These worries underly the bipartisan push-back on certain counterterrorism decisions – such as trying terrorists in civilian courts – that under  Bush brought little controversy.  A final downside is the political risk this approach entails if and when there is a successful attack on the homeland.  For if there is another attack, and if in the crystal-clear perspective of hindsight it can be traced to a refusal to exercise presidential powers that were reasonably available, the political consequences will be devastating.