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!

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