What’s Worse: Trump’s Scandals or Obama’s Executive Overreach?

I was talking to a friend last night.  He was very worried about the scandals in the Trump administration.  Now I don’t know which scandals he was talking about.  The possibilities are many: possible collusion with the Russians during the 201 campaign;¹ firing the head of the FBI; Michael Flynn lying; Trump family products promoted from the White House; Stormy Daniels;² the Secretary of HHS resigning after spending hundreds of thousands of dollars on private flights; etc., etc..  Then there are things like some of his tweeting, which may not fit the definition of a “scandal,” but are appalling just the same. 

My friend then said that Barack Obama didn’t have any scandals.  I disagreed, which I think surprised him.  When he asked me what they were, I decided not to talk about President Obama publicly prejudging the FBI’s investigation into Hillary Clinton’s emails, both because I’m tired of former Secretary Clinton’s emails and because I wanted to mention what I think was real scandal in the Obama administration: what I saw as the gross overreach of executive power by the President and his administration.

I don’t think my friend considered that to be a “scandal,” and it isn’t in the old-fashioned sense of the word, which is misusing governmental power and/or position for personal gain.  Obviously, this is something we are familiar with in Illinois.  It’s standard operating procedure here.  In fact, it’s so standard, that we don’t even recognize it much of the time (see here).  I don’t think the Obama administration had that many instances of that kind of scandal, though it did arguably happen (see here and here for example).

What I called the scandal of the Obama administration was, in my opinion, worse.  Ordinary scandals of the type referred to mentioned in the prior paragraph happen, but then, usually, we go back to proper procedure after they are uncovered (except in Illinois, of course).  The problem with the Obama administration overreach is that it lasts.  When a president overstretches executive authority, it doesn’t snap back all the way when the next president comes into office.  It may snap back some, but it stays stretched at least a little (and possibly a lot).  Which means his successor now has more power, too.  If President Obama could do things that Congress wouldn’t do because he had a pen and a phone, Donald Trump can use the same pen and phone to do things that Congress won’t do for him.  And it doesn’t work to say that President Obama’s use of the pen and phone was okay because what he was doing was right, while what President Trump is doing is wrong. 

Presidential power, once stretched, stays stretched.  An abuse (or overreach) of executive power by one president becomes standard operating procedure for the next.  One overreach of the Obama administration that I found particularly amusing was its refusal to comply with the War Powers Act in connection with our bombing of Libya in 2011. There is a principled position that the War Powers Act is an unconstitutional restraint on presidential power.  The Obama administration didn’t use that justification, however.  (Probably because they wanted to be able to argue the War Powers Act applies to future presidents, though they didn’t want to comply with it themselves in the case of Libya).  What they came up with was the idea that the War Powers Act applies to “hostilities,” and Libya didn’t involve “hostilities” because while we were bombing them, they weren’t shooting back at us.  And they said it with a straight face.

There are all kinds of examples of the Obama administration stretching executive authority (often because Congress wouldn’t do what it wanted): changing/not enforcing IRS laws on Obamacare because the ones that passed Congress didn’t work; amending tax rules on the fly to try to stop corporations from moving their headquarters overseas; letting Dreamers stay through prosecutorial discretion; issuing administrative “guidance” instead of following the Administrative Procedure Act to issue proper regulations; trying to appoint members to the NLRB via recess appointments when the Senate wasn’t in recess; etc., etc.

These are not “scandals” in the sense of the word as my friend was using it when he was complaining about President Trump.  But in some ways, I think these things might be a bigger danger to our country than President Trump’s scandals.  And Democrats might agree if President Trump tries to start using some of the executive powers that President Obama overstretched to do the “bad” things President Trump wants to do, as opposed to President Obama using them to the “good” things he wanted to do.
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¹ We will have to see whether there was any collusion and, if so, with whom.  And whether it was all that different from what has happened in the past.
² Is it “just sex” and a family matter?