Barack Obama’s constitutionalism is not quite what anyone would have expected. Far from embracing bold liberal notions of the Constitution and the Bill of Rights, much of his legal philosophy seems at home with his predecessor George Bush and Republicans.
Ostensibly a liberal Democrat, one would have thought that Barack Obama would have been a civil libertarian, respectful of individual rights. One would have also expected that he would have sought to use national power to its fullest to fulfill his agenda. As a lawyer and former constitutional law professor, the belief was that he understood the law and would see how moving quickly and aggressively to fill the federal bench with his judicial nominees would be critical to securing his legal agenda and undoing the legal legacy that George Bush left.
Such expectations were nurtured by presidential candidate Obama. He sharply criticized the Bush administration for its support of torture and disregard for international law. He promised to close Guantanamo Bay, and otherwise end the illegal operations of the war on terror and the presidential excesses of his predecessor. Yet Obama has not turned out to be a constitutional liberal.
To his credit, in the opening days of his presidency Obama did move to undo many of the practices of the Bush administration that he campaigned against. He repealed legal opinions supporting torture and in his inaugural speech he committed his administration to transferring prisoners out of Gitmo and to closing the facility. But Congress fought him on this initiative and Republicans have successfully stalled or filibustered judicial and other nominees. But even accepting both as excuses, Obama’s constitutionalism is surprising.
The Obama administration insists that it is within its constitutional authority to use drones to kill American citizens and to intercept and track telephone calls and internet traffic under the Foreign Intelligence Surveillance Act and through the NSA Prism program. Obama administration legal memos, some of which have yet to come to light, so far seem to rely upon the same assertions about extra-constitutional presidential power as commander-in-chief or upon the same congressional ascent under the post-9/11 Authorization to Use Military Force that Bush invoked. The legal memo on drones makes the same legal contortions about presidential power that the John Yoo memo did when it came to torture. Obama has used these legal rationales and the most extensive authority given to him under the Patriot Act and FISA to justify policies disregarding basic civil rights and liberties.
His administration justifies the killing of American citizens without proof of guilt in court. There is no regard to the Fourth Amendment rights against use of excessive force, no due process to contest a decision to make unilateral execution decisions. His snooping on American citizens is done without warrant, or at least one with proof of particularized suspicion as required under the Fourth Amendment. His administration's initial refusal to read the Boston Marathon Bomber his Miranda rights exploited a questionable legal loophole and ignored the Fifth Amendment. And do not forget that the IRS targeting of political groups is also a violation of the First Amendment.
But additionally the Obama administration has rode roughshod over many other parts of the Constitution. Where is the respect for the First Amendment freedom of the press when comes to getting secret warrants to search reporters telephone conversations because they reported on news embarrassing to the Obama Administration? Or where is the respect for First Amendment freedom of speech when it comes to one of the most aggressive administrations on record when it comes to prosecuting leaks and whistleblowers?
But his constitutional contempt is matched by timidity. Obama now supports same-sex marriage, but only as he was beginning to run for a second term in office and when the tide of public opinion had apparently shifted on the subject. It took years for the Obama administration to reach the conclusion that don’t ask, don’t tell was unconstitutional but he never did anything to fight its enforcement. The same with DOMA–he did eventually argue that it was unconstitutional but continued to enforce the law. Even in his administration’s arguments before the Supreme Court, Obama has never embraced a view of the Equal Protection clause that fully argues that bans on same-sex marriage are unconstitutional. Nor have we seen Obama argue that the death penalty is unconstitutional, and we have not seen him take an aggressive stance in Court to argue that the Second Amendment decisions holding for an individual right to bear arms were wrong and should be reversed.
Even with the Affordable Care Act–his signature issue–he has failed to act boldly. His central justification for its constitutionality rested on the Commerce clause–an argument the Supreme Court ultimately rejected. In passing the Act Obama capitulated on abortion rights and since its passage has failed to push aggressively on contraception, including until recently his refusal to go along with allowing women under 18 the right to purchase the morning after pill. It took a federal court ruling his policy to be arbitrary and capricious to get him to change his mind.
Finally, the Obama administration has moved slowly on judicial appointments, generally eschewing efforts to challenge Senate Republicans to reject his nominees who, for the most part, have been centrists and not liberals.
Obama’s Constitution is hardly liberal. It is supportive of strong presidential power resting upon dubious constitutional claims of unilateral authority to act. It is a constitutionalism devoid of serious respect for individual rights, supportive of the national security state, and surveillance ahead of privacy. It is a constitutionalism not of the kind one would have expected from him, but instead one that bears more resemblance to that of George Bush than it does of the liberal Democrat some thought he was.