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Gene Healy joins us for a special Inauguration Day episode of Free Thoughts wherein we assess Barack Obama’s legacy as President of the United States.

Gene Healy joins us for a special Inauguration Day episode of Free Thoughts. We assess Barack Obama’s legacy as President of the United States and think about what we might expect in the coming years from President Trump.

What will Obama’s presidential legacy be? How will recent expansions of executive power under Obama affect the actions of a Donald Trump administration?

How hawkish has Obama’s foreign policy been? What happened to the anti‐​war movement during Obama’s presidency? Can we expect them to come back during a Trump administration?

Show Notes and Further Reading

Gene Healy’s article in the February 2017 issue of Reason is “Goodbye, Obama”.

Other episodes of Free Thoughts that are mentioned in this episode:
America’s Dangerous Devotion to Executive Power with Gene Healy
What Are the Risks of Terrorism? with John Mueller

Healy mentions Jack Goldsmith and Matthew Waxman’s “The Legal Legacy of Light‐​Footprint Warfare” (2016).

He also mentions Party in the Street (2015) by Michael T. Heaney and Fabio Rojas, National Security and Double Government (2014) by Michael Glennon, and “The Two Presidencies” (1966) by Aaron Wildavsky.



Aaron Ross Powell: Welcome to Free Thoughts from Lib​er​tar​i​an​ism​.org and the Cato Institute. I’m Aaron Powell.

Trevor Burrus: And I’m Trevor Burrus.

Aaron Ross Powell: Joining us today is Gene Healy. He’s a vice‐​president at the Cato Institute and author of the book, The Cult of the Presidency: America’s Dangerous Devotion to Executive Power. Today, we’re talking about a new article that he has in the latest issue of Reason magazine called Goodbye, Obama, assessing Obama’s legacy as he leaves office. And in fact, this episode comes out I believe on inauguration day. So, looking back at the president. So start with the question I’ve most often wondered. Do you think the Nobel committee would like to take it back?

Gene Healy: I actually say in the piece it would have been less embarrassing for all concerned if Obama had just sort of done a Bob Dylan on the committee and just not responded and gone AWOL. I think, you know, it’s pretty clear he was embarrassed about it. You know, he came in 2009. He hadn’t been president for that long, but during the period between his inauguration and taking the stage at Oslo, he’d launched about the same amount of drone strikes as George W. Bush did in his first two terms. He was in the middle of—well, the beginning parts of the Afghan surge. And the entire speech is an apology for—and slash defense of the necessity of war in modern times and it’s certainly a necessity he seems to have believed in because one of the striking features of the Obama legacy is how constant and unrelenting US military involvement abroad became.

Trevor Burrus: You mentioned about drone strikes that he did just in that one period and I don’t know the absolute numbers, but I’m sure it’s quite high and much more than George W. Bush ever did in his presidency. But is it being fair to just look at absolute number of drone strikes and not think about something like whether or not they were needed or justified and for what was more dangerous now then maybe we needed more drone strikes?

Gene Healy: That’s certainly a possibility. It doesn’t seem to be exactly what’s going on. For example, how great a threat to the United States, to the US homeland is the Somali jihadist group Al‐​Shabaab. In the last months of his presidency after Donald Trump’s election, Obama expanded the list of targets under the 2001 authorization for the use of military force to Al‐​Shabaab. And there’s a decent amount of testimony from within the permanent national security bureaucracy that this is becoming—you know, we have the hammer. Every problem looks like a nail. It’s pretty doubtful that we would be talking about, you know, the possibility of expanding the war on terror to include groups like Boko Haram. If it was not possible for us technologically to strike from a great distance without putting US airmen and ground troops at risk.

Aaron Ross Powell: But doesn’t that make it then a good thing? I mean if we—these are bad groups. They’ve done awful things. They’ve slaughtered civilians. They continue to, and we being United States and then Obama have this tool that allows us to take out bad people without putting Americans in danger, without putting boots on the ground, without entering into these long and very expensive wars. So, maybe this is going back to his Nobel Peace Prize, like maybe this is an effective way to advance global peace by surgically taking out the bad guys without having to get into horrific conflicts.

Gene Healy: Well, it depends largely on what you think the US military is for. Is it a tool for the common defense of the United States as the constitution would have it? Or is it more like a, you know, the super‐​friends sitting in the Hall of Justice and scanning the monitors and looking for bad people to strike? Also, Jack Goldsmith and Matthew Waxman have an important article recently about Obama’s legacy of light footprint warfare is the term they used. And they point out that the so‐​called light footprint warfare, drone strikes, airstrikes from off‐​shore, minor or minimal involvement of large numbers of ground troops that it’s consequential. The consequences are not as immediate and apparent as invading a Middle Eastern country with 150,000 troops. The body bags don’t come home, you know, soon if they come home at all. But it’s not the case that expanding the target list of the war on terror in this sort of never‐​ending mission creep. It’s not the case that it doesn’t result—well, let me say that positively. It can result in blow‐​back at home.

You know, you’ve seen a number of domestic terror attacks in the United States, usually lone wolf terror attacks where the perpetrators have referenced the drone program. And when this happens, certainly it doesn’t mean it’s justified. These are marginal and often crazy people. But, when you have an increase in domestic terror attacks, if you have somebody who cites the existence of the US drone program as a rationale, it doesn’t seem to—the feedback loop doesn’t seem to operate such that we rethink whether we actually need to be targeting all these groups.

Aaron Ross Powell: Is there tension in making that argument because—so we’ve had John Mueller on the show and his argument has long been, “Look, domestic terror attacks are so rare and so minimal that we shouldn’t worry about them really much at all and there’s not much we can do about them anyway, but they’re not a big deal and stop flipping out.” So, that says that there’s not much to them and they’re not a very big deal but you’re using them as an argument against large‐​scale foreign policy interventions. And so, how can they be an important factor in our considering whether we should try to promote peace overseas if they’re not an important factor in deciding what sorts of security we should have at home?

Gene Healy: Yeah. There’s arguably some tension there, but I think the reason that there—you know, somebody shooting up a nightclub or a mall is something to be considered is—well, it’s a terrible event, but it’s not because it leads to, you know, mass slaughter or on the scale of a nuclear exchange. I think the reason to be concerned about it is precisely because we do overreact to the threat of terrorism and we are prone to adopt measures that crack down on civil liberties as a result of these. You know, if alienated suburban teenagers shoot up a school, we all know that, you know, if you look at the statistics, school is still about the safest place for our kids to be, and in a big country of 330 million people, bad things happen and we’re sort of wired to focus on them.

But the interesting thing you notice is when there is a school shooting, for the most part on the right, the policy prescription is don’t do very much, maybe more armed officers in school, which is a bad idea, maybe arm the teachers. But there is not a call for mass surveillance for fundamentally rethinking constitutional rights in the United States. Now, you take a similar‐​scale incident and if it’s somebody who, you know, follows ISIS, you know, who has had contact with ISIS figures on Twitter or has been inspired by Anwar al-Awlaki’s sermons, then the policy prescription is let’s ramp up surveillance, let’s shut down immigration. So I think the world being what it is, human nature being what it is and our reaction to these things being what it is, it is something you have to take into account when you’re considering whether you want to go abroad and add more monsters to the list of monsters to be destroyed.

Trevor Burrus: You mentioned the Authorization of the Use of Military Force, what we call the AUMF around here, Cato and Washington; you mentioned a few minutes ago. What is that for our listeners who don’t know? And then, what has Obama done more—specifically what you mentioned adding certain groups to it, but what has he done to change or alter his words or expand it?

Gene Healy: It is the authorization congressional resolution passed three days after the 9/11 attacks, authorizing the president to use all necessary and appropriate force against essentially the perpetrators of the 9/11 attacks and anyone who aided or harbored them. And that, you know, principally Al‐​Qaeda and the Taliban—

Trevor Burrus: Would you call it a declaration of war as traditionally perceived?

Gene Healy: I don’t think international lawyers would consider it a declaration of war. I do think, you know, there’s this whole debate about, you know, we should just go back to declaring war. I think for domestic law purposes in terms of does a particular military engagement meet the constitutional requirement, I don’t think magic words are required. I think that early on in American history, you had wars that were authorized by formal declaration and you had engagements like the quasi‐​war with France in the Adams administration that had narrower forms of authorization. I think the important thing is that congress, you know, stand to be counted on the decision to use force before force is used. And the 2001 AUMF as I said principally to go after the perpetrators of the 9/11 attacks and the people who assisted or harbored them.

Over the years, and this did certainly start under the Bush administration, the broad language in that resolution, which was not as broad as the Bush administration initially proposed, became used to justify an expanding succession of jihadist groups, many of which—most of which did not exist on 9/11, and as time went on, whose connections with the original targets of the resolution became more and more tenuous. And, in fact, you had in the spring of 2013, there’s a front page piece in the Washington Post about national security officials and national security lawyers within the Obama administration being concerned that they’d stretched the language of this resolution too far, that it was becoming instead of something designed to go after the perpetrators of a particular attack, it becomes an all‐​purpose, you know, delegation of congressional war power to the president to go after bad guys, which is not something that it was intended to be.

Well, that was the spring of 2013 and it was the following summer that Barack Obama invokes the 2001 AUMF by this point, you know, something that existed longer than the Gulf of Tonkin Resolution, longer than the Vietnam War had carried out something that actually was passed by Congress before Steve Jobs unveiled the first iPod. Barack Obama invoked the 2001 AUMF for the war against ISIS. The interesting thing about this was that ISIS was in open dispute and, in fact, open warfare with Al‐​Qaeda. It could hardly be said to be what they term an associated force of Al‐​Qaeda. Al‐​Qaeda is a force that refused to associate with them other than to fight them. Al‐​Qaeda had ex‐​communicated them and they, in fact, had pretty different goals strategically.

And, yeah, no doubt some bad guys. You can make an argument about whether we should have re‐​launched yet another war in the Middle East to go after them. But what I think can’t be supported is the notion that the language of the 2001 AUMF supports going after one, two, three many Al‐​Qaedas, some of which are engaged in beheading members of the other group.

Trevor Burrus: It seems that the global war on terrorism and occult though is so different that maybe this is the kind of power that we would like a president to have in the sense of being able to identify and eliminate threats when he deems it necessary because it’s a very different world now in terms of the possibility of nuclear attack, the possibility of chemical weapons attack, and the kind of things that these groups are planning. So maybe it is within the general idea of the AUMF. Or should we be reading it really literally?

Gene Healy: Well, I—there is nothing in the constitution that says that the president can’t undertake a defensive use of force. There’s nothing in the constitution that says, “Well, the bad guys have to get the first punch and then, you know, we can use military force.” At the Philadelphia Convention in Madison’s Notes a discussion, you know, centered around the phrase “the president has the power to repel sudden attacks.” That’s how some of the framers interpreted the allocation of war powers that they’d achieved in the constitution.

So, you know, applying that framework, that offense of uses of force, you know, the United States throwing the first punch are uses of force that require congressional authorization. But applying that to a modern context, that certainly doesn’t mean that the president has news of a chemical weapons attack pending by a group that we’re not currently at war with. It doesn’t require him to sit on his hands and wait to see if the attack happens. You can have within the constitutions allocation of war powers, there’s room for defensive uses of force by the president. What there isn’t room for is what’s turned into a perpetual delegation of congressional war power, you know, what the administration has admitted will be a generational struggle. A delegation of war power is that becomes a blank check that the president doesn’t have to go to Congress to expand the theory of war to new countries and new groups.

Aaron Ross Powell: Given his expansion, given his drones, given how many countries he’s bombed, what happened to the anti‐​war movement? How did he kill it? Because he certainly seems to have killed it or at least put it into hibernation until Trump takes over.

Gene Healy: There’s a very good book on that called Party in the Street by two social scientists who did huge amount of work, the actual field work attending major anti‐​war rallies over the last 10 to 12 years. And in the book, they talk about how the, you know, largest anti‐​war rallies since the Vietnam War took place during the Bush administration—100,000 people on the mall at one point. And they tracked the decline of the anti‐​war movement. What’s interesting is that it starts to collapse even before Barack Obama is elected and even before he’s won the nomination. The last major anti‐​war rally that they identified was just after the democrats took over Congress in the 2006 midterms and they describe it as the movement leaving the field before a single policy victory had been won.

And by the time you’re in Barack Obama’s first term, you know, it’s a handful of die‐​hards that you might see at Meridian Hill Park, places like that. It’s not a mass movement. And they explained that partisan democrats who had swelled the ranks of the anti‐​work protests during the Bush administration just entirely left the field. It’s a phenomenon you see in a lot of areas in American political life, this sort of situational constitutionalism if I—you know, I’m against the imperial presidency when I don’t like the color of the robes that the emperor wears, so whether they’re red or blue. Maybe we’ll see a rejuvenation of the anti‐​war movement during the Trump presidency.

Trevor Burrus: If you ask a lot of Americans today on—because it’s inauguration day when this episode will be released. And looking back on the Obama presidency, if you ask them how many wars has Obama fought? I think a lot of Americans would say none. What would be your answer to that question of how many wars has he fought?

Gene Healy: It’s a bit difficult to count, you know. I thought about this. I mean I think you—where do you—you know, there’s this phrase from the first war of choice that Obama fought—the Libya intervention in 2011, this phrase “kinetic military action.” They didn’t like to use the word “war,” so like Truman called it a police action. They called it a kinetic military action, which seems like a redundancy because you can’t really have static military action.

But I think one of the difficulties in answering that question, how many wars has Barack Obama been involved in, is that, you know, there really—as he’s pointed out, there isn’t sort of a bright line divide and a, you know, a signing ceremony on a US aircraft carrier anymore. Obama more so than George W. Bush has really normalized perpetual presidential war. Example I use in the piece, you know, you’ve seen the reporting recently over 26,000 airstrikes in 2016 alone. One example I use in the piece which struck me at the time was that just over Labor Day weekend this summer, the United States hit six separate countries with some 70 airstrikes and, you know, most of us didn’t even look up from the grill. This is the new normal. This is—we are at war in a kinetic fashion the world over but it’s not—it doesn’t rise to the level of news, you know.

Certainly Obama is not the first nor was Bush the first president to occasionally use force in ways that don’t comport with the constitutions allocation and military power. But it used to be in the pre‐​9/​11 era that, you know, these little frolic and detour operations, you know, a drive‐​by missile strike on Qaddafi by Reagan, you know, a little quick expedition into Granada or Panama. But, what the Obama presidency has really ushered in and perfected is perpetual low‐​level war. He leaves office this week as the first president in United States history, the first two‐​term president to have been at war every single day of his presidency.

Aaron Ross Powell: How much of a role does the press play in that—in his ability to get away with perpetual war, perpetual bombings? Because I remember, you know, when—like so the first Iraq War, the kind of famous CNN coverage of bombs raining from the sky and then the second Iraq War; I can remember watching the footage of bombings in Baghdad at night. But you don’t see—so this wasn’t—you know, they were covering kinetic military action that looks much like the kinetic military action today. It wasn’t troops marching in. It was airstrikes. But they’re not—we don’t have that footage anymore. It’s kind of—it’s this distant, “Oh, there were a couple of attacks, but we don’t really care about it and we can’t see it and we can’t feel it in any meaningful way.” And that seems to play—does that play into or is that part of there’s the sense that the press through Obama’s eight years kind of abdicated some degree of its adversarial responsibility that the press seem to—I mean the press loved Obama and so they give him a break?

Trevor Burrus: I just want to add on to that with the idea of past reporting of not just the glory—the “glory—” I’m putting this in scare quotes—of war but also famously like Walter Cronkite mentioning that the Vietnam War was lost or actually the photographs from the Battle of Antietam. As soon as the people realized and it’s reported that there are bodies coming home and this also happened on World War I too. As soon as they realized that, World War II is I think an aberration because everyone thought that World War II was going to be very difficult. But Civil War, for example, as soon as people are knowing people who died, then there’s an anti‐​war movement. But if the press isn’t reporting these people dying or it’s not a huge thing and they’re not reporting on the glories of war, then the people just remain unaware.

Gene Healy: All right. I guess I resist, you know, the monolithic categories like the press or the media because certainly there’s been a lot of good reporting done on this. I think a lot of it has to do with the nature of the light—the character of the light footprint warfare that Obama has embraced, which in many ways is these techniques, this approach is done to keep it out of the headlines. There’s an enormous amount of secrecy surrounding these shadow wars and there are reporters who have done quite a lot to try to uncover it.

And, you know, there’s also the—you can’t embed a troop with a drone. So, I do think there’s a necessary distance to some of this and a distance that’s imposed through a veil of secrecy. In fact, one of the most absurd examples of this I remember seeing in the last few years is, you know, PolitiFact, the fact‐​checking organization.

Trevor Burrus: I’m putting that in scare quotes for you right, the “fact‐​checking organization.”

Gene Healy: They don’t always do good work. But, New Yorker reporter, Ryan Lizza, after the war on ISIS started tweeted out something about, you know, number of countries Obama has bombed in—you know, number of countries Bush bombed, a list for number of countries that Obama bombed. I think he listed six. PolitiFact decided to check this out. They ended up rating it mostly true, but the part that was just bizarre about it was they couldn’t get an exact count because they’re lying in the pieces. Both presidents may have bombed the Philippines. There is an airstrike of some sort reported on in the Bush administration and another one reported but not confirmed in the Obama administration.

For a long period of time, the policy of the US government, the Obama administration was we can’t let you know which groups we’re at war with. ProPublica, the investigative journalism outlet, asked Pentagon spokesman and they got the answer that it would be dangerous to national security for the Pentagon to provide a list of the groups that we consider ourselves at war with under the 2001 AUMF because by being on this list, some of these groups could get a shot in the arm and raise their status if the public knew that we were at war with them and that would be more dangerous for us.

In fact, around the same time, you know, in Senate Foreign Relations Committee hearing—I forgot who it was, maybe Senator Levin who was asking, you know, “Can we get a list?” And the Pentagon official said finally, “OK, we’ll give you a list but I’m not going to answer questions about this in open session.” So here’s a—you know, you’ve got this bizarre—you know, people talk about the death of democracy that’s coming up during inauguration but here you have during the Obama administration. You have a situation where senators, you know, have to twist arms to get a list of who we’re at war with where senators like Ron Wyden had to warn for years about the existence of a secret patriot acts that in the administration’s internal policies justified a lot more surveillance than the people or the representatives who voted for that act would have authorized. This is a strange situation where you have secret law and wars that are themselves largely in the dark.

Trevor Burrus: But maybe we’re sort of begging the question on using the word “war” here because if the government—if the Pentagon were treating this more like a crime‐​fighting endeavor and these little groups were kind of like organized crime. And if we—because, you know, even if we went to the FBI, let’s say, we said “Give us a list of everyone that you’re investigating, every mafia group and every paramilitary group in America that you’re investigating and tell us who they are publicly,” well, that would be a silly thing for them to do from a crime‐​fighting standpoint. So maybe if we stop using the word “war” and just say the military is policing these groups like criminal factions, 100 people in a desert somewhere, and no—like, not give—we’re not at war with them. We’re policing them like a criminal faction, so we’re not going to tell everyone that we’re doing it.

Gene Healy: Well, I suppose if you announce that we’re, you know, we’ve investigating a particular group, they may change their communications practices, but I would think like the value of keeping it a secret that, you know, we’re at war with Al‐​Shabaab or another group is fairly limited because you would think at the time of the first drone strike, they’d get a clue about it. Why can’t the rest of us have an open public debate about this? And preferably, before we add them to the list.

Trevor Burrus: Good point. You mentioned the PATRIOT Act a little bit, which I think is a good way to get into another legacy of Obama which is the surveillance data.

Aaron Ross Powell: And related to the surveillance data because a lot of what we’ve learned has come from leakers. In the recent article, you have another one of these striking statistics about Obama that I think a lot of the supporters are not familiar with, which is that Obama has conducted more espionage act prosecutions against leakers than all of his predecessors combined. So, his legacy there of snooping on Americans and shutting down attempts to talk about this.

Gene Healy: Yeah. James Risen recently in the Washington Post reporter—I mean sorry, in the New York Times has a piece that if you’re worried about Trump’s threat to the press, you know, blame Obama. There’s a, you know, quite a bit of—the programs that were revealed by Edward Snowden in the summer of 2013 were, you know, began in the Bush administration. But they were deliberately continued by the Obama administration under a secret theory of the PATRIOT Act that does violence to ordinary language by making potentially all Americans call records and other records “relevant” to an ongoing investigation of counter‐​terrorism. And the very word “relevant” seems to presume the existence of things that are not relevant.

And, you know, you saw some reform in the wake of the Snowden revelations, in fact, you know, when the original articles in the Guardian came out, President Obama famously said, you know, “I welcome this debate” while at the same time his justice department had filed a secret indictment under seal of the espionage act charges against the guy who made this debate possible, Edward Snowden. You did see some reform, the USA Freedom Act, some executive branch reform as well as a result of the fact that most people did not appreciate what the government was doing in their name and in secret.

But, again, on the way out of office just this month, President Obama has made it easier to share raw signals intelligence picked up abroad which can include a large amount of American’s communication content internet and phone call for the NSA to share that information in raw unfiltered, unminimized form with a larger array of federal intelligence agencies and enforcement agencies including the drug enforcement administration and the Department of Homeland Security.

As I write the piece, there have been occasions where Obama has publicly and privately worried about the growth of executive power under his administration and you would think that this worry would be quite a bit heightened given that the person that he’s handing the keys over to is someone that Obama himself has said was flatly—said was unfit to be president and couldn’t be trusted with a tweeter account, let alone the nuclear launch codes. But yet on his way out the door, he is opening new fronts in the forever war and expanding the executive branches surveillance powers.

Trevor Burrus: Let’s talk about that sort of transition power because as you write in the piece, candidate Obama and even—I think it was 2002 when he gave his speech on the Iraq war—pre-candidate and candidate Obama was heavily critical of executive power, heavily critical of forever war, critical of the Iraq war, critical of the way Bush administration had pretty much done everything regarding the global war on terror. And then he just carries on, if not as we’ve described, augments it. What do you think explains this? I mean do you think it’s that—it’s sort of a tendency in a lot of presidents, like the next president pretty much does in these areas a lot of what the previous president does.

But do you think it is that Obama learned things that he didn’t know and became scared? Or do you think it’s that he changed his mind about war? Or do you think it’s that he did what he thought voters needed or his sense of responsibility as president? I mean what sort of thing explains this and then maybe we can figure out what Trump might do, although that might—it’s a crazy act, but at least for Obama, what might explain this?

Gene Healy: I think like a lot of bad outcomes in public policy, it’s overdetermined. There are a number of explanations. The one that I find least plausible is that he learned things in the president’s daily brief that sobered him up with the sense of the vast responsibility and the threats that are out there and—that’s the most charitable explanation. Two other explanations, one is offered by the professor Michael Glennon, wrote a great book called National Security and Double Government about the influence of the permanent national security bureaucracy on presidents in general and particularly this president.

And Glennon says that the—and points to quite a bit of evidence that the president is not as much in charge as we might like to think or not like to think, depending on who’s president. That, for example, early on Obama was pressured by the joint chiefs and the military to go further even then he had promised to go in the Afghan surge, that early on the intelligence community made a full‐​court press on Obama that they actually called the “Aw, shit!” campaign to induce the president and the people coming in to the White House with him to think—to scare them basically into thinking that surveillance and ramped up drone strikes were necessary.

So, there’s a lot of, you know, bureaucratic inertia that drives this to the extent that I think it’s actually pretty plausible when Obama—when we’ve all found out that Angela Merkel’s cellphone was tapped. The explanation that Obama didn’t know that I think is actually quite plausible.

The other explanation that I think is very important and particularly in this case is the old Pogo Principle: “We have met the enemy and he is us.” The public’s demand for—and the political consequences of a terror strike in the United States—you know, the president is the buck really does stop with the president on those sorts of issues even if the president has no realistic chance of—in a large open society, preventing every type of terrorist attack. So there are multiple accounts, deeply reported accounts of internal decision‐​making in the national security team in the Obama presidency. And many of them talk about the failed Christmas bombing, the underwear bomber in 2009, and how that really concentrated the mind wonderfully like the prospect of a hanging for Obama that David Axelrod, the political guru started attending the terror team national security meetings. As a president sort of the implication is warning that the whole administration could go down over something like this.

Now, that doesn’t—you can shoehorn that into the explanation that he learned that the world was a more dangerous place than he thought, or you could read that as, you know, my political butt is on the line if, you know, we don’t do something about this. You know, there was an argument that Obama would be “our first civil libertarian president” that was popular back in the days of new hope around his first inauguration. It’s an easy argument to make fun of, but I do think like Obama did present a different sort of profile than you usually get in the presidency as somebody with a high ACLU rating, who taught constitutional law, who had shown commitment to civil liberties issues as a state senator and otherwise. That did not survive its first contact with the national security bureaucracy and the insatiable demands of the public for perfect protection from terrorism.

Aaron Ross Powell: His unilateral use of executive action. This is one of the other things that terrifies about the guy who’s going to take over or is taking over on the day that we release this episode, is Obama—he has his line about having a pen and a phone. He seemed to grow the presidency as a branch of government that doesn’t need to wait for the other branches. And this is part of his legacy that seems to get explained away by his supporters as what he had to deal with an obstructionist congress. He had republicans controlling congress and they wouldn’t let him get anything done and the country needed things gotten done and so he had to step up and do it. Is it fair to say—is that a fair explanation for why he had to do these things as it let him off the hook a bit? Did he really grow the presidency in the way over, say, where it was when he came into office?

Gene Healy: In some ways, yes. I mean this is an old piece of conventional wisdom from a presidential political science which is that we have two presidencies from an article by Aaron Wildavsky. There are two presidencies. There’s one that operates in the national security foreign affairs arena and there the president can get away with quite a bit. And then there’s the domestic presidency where, you know, if the president wants a new campaign finance reform bill or a new healthcare bill, well, he’s got to convince Congress.

So, that thesis I think has a lot to it. One complication of it is that foreign affairs national security particularly in the era of the war on terrorism is not something that happens over there. It’s something that in areas like surveillance and secrecy affects American rule of law right at home. But, you know, it’s still—the president’s freedom of action is still more limited. Obama made some significant encroachments on that and ran into some pushback from the courts and, to some extent, from Congress. The Immigration Homeland Security directive has run into trouble and will, you know, likely be undone by Trump.

And one of the things that most striking to me in terms of domestic increase of executive power with little regard for—with no involvement in national security or any argument like that was his use of a presidential power or the purse with regard to the implementation of Obama Care where, you know, Congress did not pass the appropriations for cross‐​subsidies to insurers and they just found the money and started spending it. And this is really—I go into it in the article a little bit. There’s this really funny shades of David Addington, that’s Cheney’s legal counsel.

Shades of David Addington moment where people at the IRS who were objecting to this, you know, finding of money that hadn’t been appropriated were taken and shown in a secret memo and told they couldn’t take notes and, you know, they couldn’t take the memo with them. And when questions about this, you know, where do you get the authority to just spend money when questioned about this at congressional hearing, nobody from the administration could actually point to a source of statutory or constitutional authority, although one treasury official said, “Well, if Congress doesn’t want us to spend the money, they could pass a bill that says specifically ‘Don’t spend the money,’” which—

Trevor Burrus: So the default was we can spend the money and they have to tell us not to.

Gene Healy: Yeah. It turns it completely upside down. You know, that ran into trouble in the DC District Court. It’s still, you know, up in the air how that’s going to be resolved. But in areas like that, he made some significant encroachments not always successful. But I think the growth in the administrative state and the—you know, the so‐​called fourth branch of government which is actually in the executive branch, this isn’t something he invented. It’s something he enhanced and it’s something that increasingly reaches into more intimate areas of American life.

I was thinking about the executive orders that Trump, you know, can issue in his first few weeks in office. It struck me that there used to be—you know, it’s a common thing in the modern era for new presidents when the presidency changes parties to issue a flurry of executive orders early on in their first term to signal to their constituents that, you know, he’s got your back and get some things done. But the one that used to be prominent is this thing you may remember called the Mexico City Policy. It’s about foreign aid for family planning. Reagan issued this policy at a conference in Mexico City saying no foreign aid to any groups that give family planning advice or contraception, abortion, that kind of stuff. Bill Clinton reverses it on his—like his first day in office. George W. Bush puts it back in. Barack Obama turns it off.

So there used to be—things like this would be significant things but not, you know, how much you’re going to pay on your electric bill, what’s going to be in your insurance, who gets to stay in the country legally. Like more and more the sweeping unilateral directives that a president can issue, you know, make large changes in American life that sure as heck look like law.

Trevor Burrus: So let’s talk about that wispy‐​haired demagogue who if you’re listening to this afternoon Eastern Time on January 28th is now the president of the United States. We’ve just discussed all the things that President Obama who at least has an individual ghost seems like someone I’d like to hang out with. As you said, it seemed like, you know, he came in with a huge civil libertarian streak that maybe was squashed by the national security establishment. He knows constitutional law, all around seemingly a pretty good guy. Now, we have someone who is not a good guy, who is going to take these powers over. What should we expect from—if you’re—either specifically or generally, what should we expect from the presidency of Donald J. Trump?

Gene Healy: Oh, I don’t know that you should trust my predictions. I mean I was as clueless as everybody else in this town about who’s going to win the election. You know, I don’t know if it will be more like a Berlusconi administration or something quite a bit worse. I do think that one of the things that disturbs me most about the president-elect’s behavior or president, I guess, when people are listening to this is he is sort of the extreme version of a lot of trends that have been happening with the modern presidency for a long time. He is the cult of the presidency and the growth of the modern presidency and a presidential role turned up to 11.

I stopped following Barack Obama’s—our first Twitter president, Barack Obama. I stopped following his feeds sometime back just because it was boring. It was so written by committee and, you know, let’s celebrate our national parks. Nothing like check out sex tape or Alec Baldwin is a mean‐​spirited hack.

Trevor Burrus: Or Meryl Streep is overrated. That was my new for everyone.

Gene Healy: There is a notion that, you know, the—there are the constitutional checks on the presidency but there are also a whole common law of informal checks around presidential behavior that eroded quite a bit over time. But, the founders were very leery of anything that would later be called the bully pulpit. They didn’t believe that the president’s role was to be the leader of the country or a popular leader. That was a horrifying idea for them. The federalist papers literally begins and ends with passages on—in federalist’s one on demagoguery in federalist 85, the dangers of a popular leader. Nearly all of their references to popular leadership are negative.

The president wasn’t supposed to be the tribune of the people. In fact, they had almost an anti‐​democratic or a Burkean representation role where, you know, he would resist these passions and tumults and provide time for public opinion to cool and catch up with the actual common good. Now, that doesn’t sound much like the ethic that’s surrounded the presidency for all of our lifetimes. But again, Trump is a step or a leap and bound further in that trend. The use of Twitter to signal displeasure with popular entertainers and negative articles or to announce that you’re meeting the president of Taiwan and go on a rant about China when people object to making policy on the fly like this. It’s very different. The talk recently that he might want to continue mass rallies while he’s in the White House.

Now, presidents and presidential candidates weren’t even supposed to campaign for and to the large extent didn’t do it throughout the entire 19th century. So we have mass rallies with candidates, a few mass rallies for Obama, but this is, you know—he was talking about doing this on a regular basis. It’s a different role for the president and it’s—then there is some of the rhetoric and I think rhetoric matters because it does give you a clue into what behavior might be like. I mean he’s really the apotheosis of the idea of the president as a populace tribune.

In the acceptance speech for the republican nomination, “I alone can fix it. I am your voice,” which actually in the prepared for delivery version that the Trump people released, “I am your VOICES” in all Caps like a chain email from your crazy uncle. So, I guess the upside is it’s interesting to be in Washington these days in a way that it hasn’t been quite as interesting for some time.

Aaron Ross Powell: Some generations from now when we look back and asses President Obama and his presidency alongside his peers, how do you think he’s going to look? How do you think he’s going to rank? Is he going to be one of the top‐​tier presidents? Is he going to slip down? What are we going to think of him?

Gene Healy: Well, history’s judgment on these things is usually pretty bad, is one thing. What the popular and the scholarly view of Obama is going to be as one question and what it should be is another. But, you know, if you look at the people who dominate presidential rankings, you know, Woodrow Wilson is still in the top 10. People who dream big, do great things and break a lot of stuff along the way tend to do better. War actually helps you as a president, but you know a couple of studies have shown the number of US combat deaths as a positive predictor for where you end up on the presidential rankings.

The particular kind of warfare that Obama has favored which outside of Afghanistan has been lower casualty, at least among American troops, may cut against that. But I think—no, I think he will—obviously, he will always have the first black president. The legacy of Obama Care is now in—which might have been the second line item in any description is now—that legacy is now in jeopardy. But I think in terms of what his legacy should be recognized as, I think it’s hugely important that he having campaigned on being the candidate who was going to turn the page on the imperial presidency and usher in a new dawn of peace, he has ended up being the first two‐​term president to be at war every day of his presidency. And he has insignificant ways grown in already two powerful presidency, the presidency inherited from Bush and Cheney, grown that presidency and strengthened it and now he pays it forward to Donald Trump. So, to the extent that Donald Trump is going to be able to do—to work a lot of mischief with this powerful presidency, I think Obama should be held to account for that in his legacy.

Aaron Ross Powell: Thanks for listening. This episode of Free Thoughts was produced by Tess Terrible and Evan Banks. To learn more, visit us at www​.lib​er​tar​i​an​ism​.org.