Over the last year, most progressives have disparagingly noted the Obama’s administration to defend Bush’s wiretapping policies in court. It’s disappointing; it seems to reveal Obama’s flexibility about issues that most civil libertarians hold dear. But I suggest there is an upside.
By defending, and losing, Obama’s placing the executive branch within the bounds of law.
Bush’s administration tried to circumvent the law. It’s view of the executive was high; it went where it wished because it’s task, theoretically protecting Americans, was deemed more important than process. The law was inconvenient: if it lost a case, it would just find another way of maneuvering around the pesky intrusions of the judiciary.
Losing, however, establishes an important precedent: it allows Obama to set an example of obeying the law against his will. This establishes a precedent of losing with integrity. And that benefits the country because it curtails executive power more assuredly than if he had just withdrawn the cases.
Issuing an executive order to switch gears, while laudable, would have simply signified that the executive’s priorities had changed. It would not have done the more important work of actually exemplifying how an executive should behave. Executives can push. They can win. And they can lose. It’s important that when they lose, they obey the law.
The Bush years were marked by a radical, revolutionary, disregard for the law. If anything, this is why he disenfranchised paleoconservatives and Republican moderates. By Obama fighting for Bush’s policies he may have done a more interesting thing: demonstrate their illegality. Not merely because he thought they were illegal. But because the judges said so. It had to defend them as best as could be defended; they had to make some process changes as well. But by fighting and losing, they can more credibly go other directions, with greater executive capital, and a public opportunity to demonstrate restraint.
And that’s a virtue that last administration never had.