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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?
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Barack Obama and Executive Power:

One of the main flaws of the Bush Administration was its claim to virtually unlimited wartime executive power. To what extent will Barack Obama depart from Bush in that respect? Some, including co-blogger Eric Posner, believe that Obama will basically stick to the Bush position. Others, including many liberal Democrats, expect a radical departure from the last eight years.

I take an intermediate view. Obama is unlikely to resuscitate the more extreme Bush positions. But neither is he likely to depart from them as much as some of his most fervent supporters want.

On the first point, it's important to remember that most of the Bush Administration's really extreme assertions of untrammeled executive power have already been repudiated in a series of Supreme Court decisions (Hamdi, Hamdan, Boumediene), and in some cases by the Bush Justice Department itself (as in the case of Jack Goldsmith's retraction of the infamous "torture memo"). It seems to me highly unlikely that Obama will try to revive Bush Administration doctrines that even Bush himself was forced to retreat from. Moreover, he will have little practical need to do so. For the foreseeable future, he will have a Democratic Congress eager to give him a free hand. Thus, he won't need to cut them out of the policy loop in order to pursue the policies he wants; after all, his preferences are likely similar to theirs. One of the striking failings of the Bush Administration was its unwillingness to share power with Congress even when Congress was controlled by its political allies. As Goldsmith argued in his book The Terror Presidency, this stance undermined political support for Bush's policies and led to a series of court defeats that ultimately constricted executive power more than a more cooperative approach to Congress might have. Obama is too smart a politician not to draw the appropriate lesson from these debacles.

On the other hand, I think that Obama is unlikely to restrict wartime executive power as much as some left-liberals and libertarians would want. Like most presidents, Obama probably won't easily accept restrictions on powers that he himself is going to wield. Moreover, past experience shows that liberal Democrats are far from unwilling to act on broad theories of executive power. Few if any Bush claims of executive power went as far as Bill Clinton's argument that he could wage war in Kosovo without any kind of congressional authorization. Kosovo was the only war in recent American history that was begun without majority support in Congress.

Another area where Obama is likely to take a broad view of executive authority is in responding to the economic crisis. Here, he might be tempted to exclude Congress to some extent in order to act swiftly and to minimize interest group pressures (which would not necessarily preclude the executive from using "emergency" measures to reward its own favored interest groups). I predict that left-liberals won't object to sweeping executive authority in the economic field as much as they do on national security, though I hope some of them will prove me wrong. Conservatives may not like it, but those who defended the Bush Administration against charges of overreaching might find it difficult to object without being inconsistent. I, on the other hand, will be more than happy to criticize excessive Obama claims of executive authority when I think necessary, because I was critical of Bush as well (e.g. here and here). I hope that Obama won't give me too much occasion to do so, but I'm not especially optimistic on that score.

Related Posts (on one page):

  1. Barack Obama and Executive Power:
  2. Will the Obama administration repudiate Bush-era legal opinions?
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