Five Things Obama Should Do Before Leaving Office (but Probably Won’t)

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POST-ELECTION CONCERNS-Watching Donald Trump pick his Cabinet members has been like watching a 16-car pileup unfold in slow motion. Each move fills us with horror in the knowledge of what the near future brings. 

But the assembling of Trump’s transition team has been distracting us from one crucial aspect of our current political mess: what our current president is doing in his last few weeks in office -- or, more accurately, not doing. President Barack Obama appears so eager to be done with his tenure that he seems more invested in a smooth transition of power than in fulfilling his duty to the American people. 

Ensuring a smooth transition implies business as usual. Except that there is absolutely nothing usual, or even presidential, about Trump’s Electoral College win. And what the president-elect is promising us is so harrowing that Obama owes the nation a last-minute flurry of political actions that are within his power to take before the “Trumpocalypse,” as some are calling it, is upon us.

Democrats, are you desperate to do something about Trump? Then demand that your current president do you a solid and actually use the popular mandate he earned when he was elected, twice. Obama’s refusal so far to do even one of the following is only more proof of the Democratic Party’s ineptitude and spinelessness. 

Stop the Dakota Access Pipeline Project 

The most important political battle of this year outside the electoral realm has been the indigenous-led resistance against the Dakota Access oil pipeline (DAPL). After many months of activism by the Standing Rock Sioux and their supporters, law enforcement has upped the ante in incredibly violent ways, unleashing military-grade weaponry on an unarmed citizenry. President Obama has been forced by public pressure to delay completion of the pipeline. But what is needed is an end to the project.

President-elect Trump, on the other hand, is already eager for the decision to be made during his term and has promised to speed up the Army Corps of Engineers’ review process. Among Trump’s many financial conflicts of interest is his stake in the DAPL.  It would be disastrous for him to be the decider on this issue. There is absolutely no doubt about whose side he would take. 

Meanwhile high-profile political figures have tried in vain to get Obama to do the right thing on DAPL. From Sen. Bernie Sanders to former Vice President Al Gore and even musician Neil Young, many have appealed to Obama to end the project. Twenty-eight tribal leaders, appreciative of the attention Obama has paid to their communities in the past, have now called on him to “reroute the pipeline away from tribal lands, waters, and sacred places.” 

What does Obama have to lose by exercising his authority through the Army Corps of Engineers and doing the right thing? 

Make a Recess Appointment to the Supreme Court 

It is outrageous how the GOP has stood in Obama’s path to filling the Supreme Court vacancy. Without a doubt Democrats would not treat a Republican president in the same manner. No other Supreme Court nominee in the history of the United States has waited as long as Merrick Garland to be confirmed. What’s more, Obama’s pick to replace the late Antonin Scalia does not even come close to espousing the leftist counterpart to Scalia’s extremist right-wing ideology. Like Obama, Garland is a centrist liberal. Unlike Obama, Trump will not hesitate to appoint the most conservative justice possible. The resulting Supreme Court will probably roll back even more of the Voting Rights Act, possibly Roe v. Wade, and who knows what other social and political progress this nation has made in recent decades. 

What Obama can do to send a strong message to the Republican Party is make a temporary recess appointment of Garland to the court. Legal experts point out that Obama has the right to do it, even though he has taken scant advantage of the power to make recess appointments as compared with his predecessors. While temporary, Garland’s presence on the court could stave off regressive court decisions for at least a year. Sadly, Obama has given no indication that he plans to exercise his authority. 

The larger context is that Trump might get to appoint as many as three justices to the court during his tenure: for Scalia’s seat and those that might be vacated by Ruth Bader Ginsberg, who is 83, and Stephen Breyer, 78, both strong liberals. Again, what does Obama have to lose by making a strong gesture with a recess appointment to the court? 

Pardon DACA Recipients 

Among the most terrifying promises Trump made during his campaign was to deport millions of undocumented immigrants. There is especially great fear that he will repeal Obama’s signature immigration executive action, the Deferred Action for Childhood Arrivals (DACA) program. Already, lawyers are recommending that those eligible for DACA should not apply at this time, given Trump’s election, because in order to be eligible for deportation relief, immigrants have to out themselves to federal authorities. With access to the information of hundreds of thousands of DACA registrants, Trump could easily deport them. 

Some people have urged Obama to use his presidential power to pardon DACA recipients. In California where many cities, as well as state and private universities, have declared themselves “sanctuaries” for the undocumented, Democratic lawmakers have publicly called on Obama to grant them legal status. According to the Los Angeles Times, Obama “promptly batted down the idea,” saying that pardons are not applicable because immigration violations are civil offenses, not criminal ones. 

Astonishingly, there is actually a Republican-led effort to help DACA recipients. Sen. Lindsey Graham, R-S.C., has announced plans to introduce legislation to extend DACA protections.

It might certainly be a legal gray area for Obama to pardon violators of civil offenses, but so is Congress’ stonewalling of the president’s right to appoint a Supreme Court justice. Where DACA is concerned, the lives of 750,000 young people are at stake. These are people who trusted the government and turned over their personal and contact information in order to live and work without fear. If Obama does not even attempt to protect the members of a program he created, he will be partly responsible for what they might face under Trump. 

Undo His Executive War Powers 

Many on the left spent the last eight years denouncing Obama’s unprecedented use of executive power for destructive purposes: the “war on terror.” Citing the Bush-era Authorization for Use of Military Force, Obama expanded the wars in Iraq and Afghanistan and used it to justify military actions against Islamic State, even though Congress is supposed to authorize war. The legal gray areas where Obama appears reluctant to operate seem sometimes perfectly black and white when it comes to his right to drop bombs, particularly through the unmanned drone program.

The Intercept’s Alex Emmons summarized the “terrifying powers” that Trump will have as commander in chief, thanks to Obama—including the power of mass surveillance, the misuse of the Espionage Act to prosecute whistleblowers, and more. 

Obama can undo the destructive powers he has granted himself before he leaves office. According to Emmons, “Most of the new constraints on the security state during the Obama years were self-imposed, and could easily be revoked.” After all, Obama warned Americans before this election of the dangers of having a president as unstable as Trump with access to the nation’s nuclear codes. He now owes it to us to take as much action as he can to curb the presidential powers he has unleashed. 

Offer Justice to Snowden, and Clemency to Political Prisoners and Drug Offenders 

One way in which Obama could offer a mea culpa for his aggressive legal pursuit of whistleblowers is to offer the chance for former NSA contractor Edward Snowden to return to the U.S. with assurances of a fair trial for crimes with which he has been charged. A letter signed by 15 former intelligence officials who served on the Watergate-era Church Committee asks the president for leniency in Snowden’s case. 

Going further, Obama could offer clemency to political prisoners who have spent decades behind bars (or in exile) under unjust circumstances and as a result of political persecution. A great starting point is this list compiled by Sara David, naming Assata Shakur, Oscar López Rivera, Mumia Abu-Jamal, Leonard Peltier and Chelsea Manning as worthy of clemency. 

Human Rights Watch has also written the president a letter urging him to offer relief to federal prisoners serving long sentences for drug offenses through the use of his clemency power. HRW reminded Obama of the positive impact his commutation of hundreds of prison sentences has already had and warned, “The opportunities for addressing unfairly long sentences in 2017 appear bleak, as President-elect Trump publicly criticized your commutations grants during his campaign.” 

There are many other suggestions my list could include, such as President Jimmy Carter’s appeal to Obama to recognize the state of Palestine. But I offer this list not with a naive optimism that Obama will actually act on them, but rather to point out how many crucial issues a sitting Democratic president has the power to control but often chooses not to. Clinton supporters and Obama defenders need to acknowledge the moral complacency that such inaction reveals, which in turn feeds into the political losses of the Democratic Party. 

As we lament the horrors that may unfold next year, let us not forget that Obama had the chance to do the right thing on any number of issues and chose instead to leave us at the mercy of the “Trumpocalypse.” I certainly hope I am proved wrong.

 

(Sonali Kolhatkar is Co-Director of the Afghan Women's Mission and a political writer at TruthDig …where this piece was first posted.)

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