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Will the Obama administration repudiate Bush-era legal opinions?

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):

  1. Barack Obama and Executive Power:
  2. Will the Obama administration repudiate Bush-era legal opinions?
Anderson (mail):
Those opinions are for the most part grounded in Clinton-era legal opinions and predecessors.

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?
11.8.2008 3:02pm
corneille1640 (mail):
I'm no apologist for John Yoo, but it's not clear to me that Mr. Posner was insisting that all the legal opinions were based on Clinton-era precedents, only that most were.

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.
11.8.2008 3:14pm
John Armstrong (mail) (www):
Obama will cede power—and to whom, exactly?

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.
11.8.2008 3:23pm
mlhm5 (mail):
Signing statements will be eliminated.
11.8.2008 3:27pm
Light Hearted (mail):
Eric,

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.
11.8.2008 3:27pm
CFG in IL (mail):
It would be a relief to see a repudiation of torture and indefinite detainment policies, a clear statement of their illegality and immorality. No President should have these options. Period.
11.8.2008 3:30pm
einhverfr (mail) (www):

5. And Obama himself, the constitutional lawyer? All of our greatest and most conscientious presidents have expanded executive power; none has ceded it.


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.
11.8.2008 3:39pm
Splunge:
Hail Caesar!

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...
11.8.2008 3:40pm
Boularderie (mail):
Surely there is no occasion and surely there can be no case for some sort of presumptive amnesty.

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?
11.8.2008 3:48pm
Richard Riley (mail):
I'm a Clintonite New Dem and Obama supporter who, I like to think, is the opposite of the pointy heads, ideologues, etc. whom Eric Posner mocks. I do not think Obama feels strongly about repudiating Bush-era legal opinions, and I do not think he is even slightly tempted to prosecute any Bush people tied to torture, Gitmo, etc.

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.
11.8.2008 3:53pm
PersonFromPorlock:
I do think the Bush administration was pretty loose in its interpretation of the CinC's powers, especially in presuming that they applied to the Presidency (my view: CinC, President, same guy, different offices). Nevertheless, nobody ever said "no" in a serious way and at this late date the precedents seem pretty secure... and, being useful to the Chief Executive, likely to be defended by him.
11.8.2008 4:44pm
Bob from Ohio (mail):

John Yoo's torture memos were based in *what* Clinton-era opinions, exactly?


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?
11.8.2008 5:07pm
Constantin:
Reason #6—President Obama et al probably aren't keen on the idea of being perp walked themselves by a Palin or Jindal or Clinton (they have long memories) administration in 2013 or 2017.
11.8.2008 5:10pm
tsotha:
Constantin is right. "Perp walking" Bush administration officials is the road to civil war. I expect Obama is smart enough to realize this, and though he may change some of Bush's legal stances, and he may alter some executive orders, there won't be a single official from the current administration that gets charge with a crime.

All that talk, like the impeachment talk, was just red meat for the base.
11.8.2008 7:23pm
Alexia:
I have no doubt that Obama will treasure many gifts from the Bush administration. The powers in the Patriot Act are possibly the best gift an incoming socialist could receive from an outgoing fascist.
11.8.2008 7:24pm
Horatio (mail):
Signing statements will be eliminated

Dream on. Those who seek tremendous power do not cede it voluntarily.
11.8.2008 7:55pm
Two-Fisted Law Student (mail):

let-justice-be-done-though-the-heavens-fall types

When exactly did this become an insult?
11.8.2008 8:54pm
Doc W (mail):
Light Hearted, Alexia: Thank you. I have nothing to add.
11.8.2008 9:15pm
Another David (mail):
Two Fisted Law Student: About the same time "Give me liberty or give me death" became un-American terrorist-coddling.
11.8.2008 9:28pm
Jmaie (mail):
The powers in the Patriot Act are possibly the best gift an incoming socialist could receive from an outgoing fascist.

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...
11.8.2008 10:52pm
davod (mail):
"Two Fisted Law Student: About the same time "Give me liberty or give me death" became un-American terrorist-coddling."

What are you trying to say?
11.9.2008 1:06am
davod (mail):
WRT to indefinite detainment - The SCOTUS went against its own precidents when it ruled against long term detainment of POWs.
11.9.2008 1:09am
Another David (mail):
1) “’I am a strong supporter of the First Amendment, the Fourth Amendment and civil liberties. But you have no civil liberties if you are dead,’ Roberts said.”

2) Did I miss a ruling on POW detainment? Hamdi, Hamdan and Boumediene all concerned suspected terrorists, not battlefield captures.
11.9.2008 9:50am
Oren:

WRT to indefinite detainment - The SCOTUS went against its own precidents when it ruled against long term detainment of POWs.


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.
11.9.2008 11:19am
Mt Lassen (mail):
Hmmm..."All of our greatest and most conscientious presidents have expanded executive power; none has ceded it."

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.
11.9.2008 11:48am
Anony:
I second Doc W. Light Hearted, Alexia, and Mt Lassen are on the money.

When you define "great presidents" as strong, active presidents, it naturally follows that those presidents didn't reduce their own executive power.
11.9.2008 12:26pm
Sagar:
From their first meeting in 2004:

"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.
11.9.2008 12:50pm
ThomasD (mail):
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.
11.9.2008 1:10pm
byomtov (mail):
let-justice-be-done-though-the-heavens-fall types

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.
11.9.2008 1:44pm
Soronel Haetir (mail):
I have an even more unrealistic dream, the government ceding power back to the ether, not just one branch ceding that power to another. Not going to happen.
11.9.2008 2:14pm
MarkField (mail):

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.


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.


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.


Historians generally consider Jefferson to have substantially enhanced presidential power. An obvious example would be the embargo and its enforcement.


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.


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.
11.9.2008 2:17pm
New Pseudonym:
If we so away with signing statements, shouldn't we also do away with self-serving "legislative history" that equally involves one branch of the government saying what a statute (which requires the consent of two branches) means?
11.9.2008 5:20pm
MarkField (mail):

If we so away with signing statements, shouldn't we also do away with self-serving "legislative history" that equally involves one branch of the government saying what a statute (which requires the consent of two branches) means?


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.
11.9.2008 6:57pm
Prosecutorial Indiscretion:
I have no doubt that Obama will treasure many gifts from the Bush administration. The powers in the Patriot Act are possibly the best gift an incoming socialist could receive from an outgoing fascist.

Which specific powers?
11.9.2008 7:51pm
RPT (mail):
Aren't those Bush-era legal "opinions" just window dressing for "I am going to do what I want to do because I can...even better if I can keep it secret'?
11.9.2008 8:18pm
Smokey:
Heck, Obama isn't even a U.S. citizen.
11.9.2008 11:38pm
einhverfr (mail) (www):
Smokey:

We are supposed to believe that arguments between two blogs means something?
11.10.2008 11:33am
John Herbison (mail):
I harbor no illusions that the incoming Congress will have the testicular fortitude to do so, but the mere expiration of their term of office does not mean that George W. Bush and Dick Cheney are no longer subject to impeachment proceedings.

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.
11.11.2008 12:09am

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