A lot of wishful thinkers hope so; visions of perp-walking Bushies dance in their head. There are plenty of reasons for thinking that this won’t happen, however.
1. Those opinions are for the most part grounded in Clinton-era legal opinions and predecessors. Though there are distinctions, they go to degree, and it would be difficult to repudiate Bush-era presidential powers jurisprudence in general without dismantling long-standing executive-branch claims going back to FDR and beyond.
2. Symbolic and real action that would mollify critics of U.S. war-on-terror tactics do not require repudiation of Bush-era legal thinking. Obama could shut Guantanamo Bay for policy reasons without saying that Guantanamo Bay was ever illegal. Taking the next step and saying it was illegal in the first place would create an infinite headache for the Obama administration without creating any additional political return.
3. Veterans of the Clinton era know full well that unexpected circumstances require executive action where existing statutory authority is inadequate and adequate statutory authority is unforthcoming. Why tie Obama’s hands by repudiating the flexible standards that Bush lawyers have labored to enlarge? Obama should treasure this gift from the Bush administration rather than return it: it will come in handy when Republicans complain of executive overreaching over the next 4-8 years.
4. What about Obama’s allies? Surely they will force his hand? This is highly unlikely. Democrats want Obama to act, not to provide legal excuses for inaction.
5. And Obama himself, the constitutional lawyer? All of our greatest and most conscientious presidents have expanded executive power; none has ceded it.
There are a small number of pointy heads, ideologues, Bush critics who have not yet shaken off the reflexes of the last eight years, let-justice-be-done-though-the-heavens-fall types, nostalgists for an imagined eighteenth century, and others whose political influence would not fill a thimble. For their sake, Obama will cede power—and to whom, exactly? A despised, passive, and weak Congress? Bankrupt state governments? The Bush-dominated judiciary? Dream on!
Related Posts (on one page):
- Barack Obama and Executive Power:
- Will the Obama administration repudiate Bush-era legal opinions?
You know, merely asserting that is not going to get you very far.
John Yoo's torture memos were based in *what* Clinton-era opinions, exactly?
More to the point, even if all of the legal opinions were novel inventions of the Bush administration, it does not necessarily follow that Mr. Obama would repudiate them.
You're asserting that there's some sort of conservation law, that powers can be neither created nor destroyed? Why do powers have to be ceded to anyone in the first place?
To use one of your examples above, you really mean to say that if an Obama administration said that what went on at Guantanamo Bay was outside of the President's power, then suddenly it would have to be within either congress' or the judiciary's power? Nonsense.
You recognize, of course, that the claim "All of our greatest and most conscientious presidents have expanded executive power; none has ceded it." is purely ideological, hinging entirely on what you consider "greatest and most conscientious". True, if expanding government power at the expense of individual liberty and pushing America into foreign wars rather than presiding simply over peace and prosperity constitutes greatness in Presidents like it did in Roman emperors, you are right. But not all take that point of view.
This is exactly why the best we can hope for in Obama is a shift towards civil liberties, and not away from executive power in abstract. And it is also why executive power will continue to expand until we are left with an autocratic tyrrany.
In other news, conservators at Monticello have denied placing large metal plates atop Jefferson's grave to damp vibration from the furious spin of the former architect of former American republican ideals...
The post-election America of 2008 is not a re-unified America of 1865, or a 1990's post-apartheid South Africa or re-unified Germany. The 2008 American election campaign and the almost ideological struggles that marked and long preceded it were of course neither a revolution or a civil war. More than that, other than the operations of ordinary principles of democratic change, there were no deals.
The resolution of the current state of American electoral politics by the ballot box victory of Barack Obama yielded neither a fragile new state nor a vulnerable reconstitution of an old one. It involved no truce and no negotiated transfer of power. There was never any implication of post-old-regime safe harbor for old regime law violators as surely as there have been no such promises to new ones. In the US democracy there was no need for either.
So, if,– and the “if” is a large and murky one – on an dispassionate review, there are reasonable grounds to believe that illegalities have occurred, then – surely -- in a republic constructed from the rule of law, the only possible route is to investigate them.
Equally so, if the investigation shows that there is a reasonable prospect of conviction then, surely, subject to workaday application of the principles of efficient application of prosecutorial and judicial resources, prosecutions should ensue.
One hopes when the truth were finally found that there could be no occasion for prosecution but surely that is not the same as prescriptively ruling it out
Otherwise, forgive me, but as an exercise in American democracy and the rule of law, what was this last election all about?
Obama appointed Rahm Emanuel as chief of staff. Obama supported the FISA amendments. Obama gave zero obeisance to goo-goo campaign finance proponents in rejecting public financing. Obama ran on a tax-cutting platform. In other words, there is not a shred of evidence that Obama has any interest in, or patience with, lefty law-professor-ish noodling over "prosecuting" his predecessors for lack of punctiliousness in asserting U.S. interests. And thank God for it. I think Obama could be a really excellent president, and not wasting a minute "prosecuting" Bushies or agonizing over their sins will be a big part of that excellence.
Weren't the Yoo memos withdrawn? If so, Obama can't exactly repudiate them any more than they already have been. Is he going to do what Charles II did to Cromwell's corpse?
All that talk, like the impeachment talk, was just red meat for the base.
Dream on. Those who seek tremendous power do not cede it voluntarily.
When exactly did this become an insult?
But of course, Obama is not a socialist and Bush is not a fascist. You are aware of this because you know what these terms actually mean...
What are you trying to say?
2) Did I miss a ruling on POW detainment? Hamdi, Hamdan and Boumediene all concerned suspected terrorists, not battlefield captures.
That might be true if anyone detained at the moment was a POW. That would also mean that, as POWs, they are entitled to absolute protection from questioning after giving their name and position.
George Washington could have been a monarch and many urged him to do so...he chose to step down voluntarily in a peaceful transition of executive power at a time when Congress could have done very little to oppose him.
Thomas Jefferson was a staunch defender of federalism and state's rights at a time when Madison and Congress were attempting to increase the power of the central government.
Would those two men not qualify as being members of the very short list of "strongest and most conscientious presidents"???
The expansion of executive power during times of war is, arguably, built into the Constitution for good reason. It was the unfortunate assassination of Lincoln which, after he was not afforded the opportunity to reduce the power the Civil War had provided him with due to his murder, set the precedent of war powers leeching into peacetime after the war was finished.
Executive powers are inversely proportional to Congressional effectiveness. Ineffective Congresses do more to increase the power and prestige of the executive than most Presidents, even the good ones, ever have.
Which Congress, in our lifetimes, has shown enough responsibility to allow a modern President to cede power back to them? Personally, I don't like the amount of power the President has these days, nor do I like the amount of power the Federal government has, period. However, I also believe that it is completely rational that no modern President has seen a Congress with enough sense to allow for the reduction of executive branch power, which is necessary to counter-balance an ever growing and ever irresponsible Congress.
When you define "great presidents" as strong, active presidents, it naturally follows that those presidents didn't reduce their own executive power.
"Bush then noted that he and Obama had something in common.
"We both had to debate Alan Keyes," the president said. "That guy's a piece of work, isn't he?"
Obama laughed and even "put my arm around his shoulder as we talked," he recalled, although he added the gesture "might have made many of my friends, not to mention the Secret Service agents in the room, more than a little uneasy."
Despite this display of bonhomie, Obama said the president's demeanor turned downright frightening when he laid out his agenda to the freshly minted lawmakers.
"Suddenly it felt as if somebody in a back room had flipped a switch," Obama wrote. "The president's eyes became fixed; his voice took on the agitated, rapid tone of someone neither accustomed to nor welcoming interruption; his easy affability was replaced by an almost messianic certainty. As I watched my mostly Republican Senate colleagues hang on his every word, I was reminded of the dangerous isolation that power can bring, and appreciated the Founders' wisdom in designating a system to keep power in check."
based on the last line above, I expect Obama to give up some of the executive powers. but i won't hold my breath.
That's a relief, four years would be fatal.
Perhaps you can revisit this sentiment at that point and ask yourself what it was that gave you your expectation?
There seems to be alot of hope in all that hope and change.
When exactly did this become an insult?
Right after Bush took office. It was important to impeach Clinton, you see, because "no man is above the law," as we were so often reminded by various bloviators.
Turns out that was wrong.
True enough, but not the only factor. Washington did a great deal to enhance executive power. Examples include the power to remove cabinet officials; the power to declare neutrality; the Whiskey Rebellion; and the assertion of executive privilege in the dispute over the Jay Treaty.
Historians generally consider Jefferson to have substantially enhanced presidential power. An obvious example would be the embargo and its enforcement.
You left out Jackson and Polk, both of whom also did quite a bit to expand presidential power.
As for the post-Civil War period, that's an odd example. While Johnson certainly did try to enhance presidential power, he was checked by probably the strongest Congressional reaction in US history. Grant, in contrast, was a relatively weak executive who left most decisions to Congress. This period of Congressional dominance remained the case until McKinley/TR.
I've always found the dispute over legislative history and signing statements to be kind of pointless. The only reason either is important is because courts give them effect. If courts don't want to give them effect, it doesn't make any difference what Bush said or what, say, Ted Kennedy said.
People get all wrought up about the self-serving arguments being made, when what they really should be doing is asking when and whether courts ought to be giving credence to such statements.
Which specific powers?
We are supposed to believe that arguments between two blogs means something?
Paragraph 7 of Article I, § 3 of the Constitution states:
Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.
The expiration of the current president's term does not make impeachment moot; the House can still investigate and vote articles of impeachment, with the Senate to determine disqualification from holding federal office in the future.
This is not a mere academic question. After serving as president, John Quincy Adams served in the House of Representatives and William Howard Taft served as Chief Justice of the United States. After serving as vice-president, Richard Nixon and Geoge H. W. Bush served as president and Hubert Humphrey served as a U. S. Senator. Walter Mondale served as Ambassador to Japan and was nominated to run for the Senate from Minnesota when Senator Paul Wellstone died in a plane crash.
Here's hoping that the next Congress will pursue articles of impeachment as to whether President Bush has taken care that the laws be faithfully executed as to torture, electronic surveillance, and such other topics as the Congress may deem appropriate.
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