Critics of the Bush administration's imperial presidential overreach should have been given pause this morning in a front page piece in the Washington Post looking at how President Barack Obama could augment the power of the office.
Obama disagrees with Bush on waterboarding, and he has pledged to take greater heed of Congress, but he has not disowned the broader assertion that a president may disregard a statute or judge's ruling. Dawn E. Johnsen, Obama's nominee to lead the Justice Department's Office of Legal Counsel, is best known for vigorous critiques of overreaching by Bush and Cheney. But her popular commentaries in Slate and elsewhere have diverted attention from scholarly writings that make a subtler point. Just last year, in the Boston Law Review, she affirmed that "in many circumstances, Presidents may develop, declare, and act upon distinctive, principled constitutional views that do not track those of the Supreme Court or Congress." The trouble with Bush was not that he asserted the power, she wrote, but that he used it wrongly.
A parallel point of view applies to legislation, and to the division of labor between statutes and executive orders.
John D. Podesta, a former White House chief of staff who led the new administration's transition team, was careful to distinguish between Obama's promise to "keep the dialogue with Congress" and his willingness to compromise on core objectives.
"He certainly comes into office with a very powerful set of executive authorities, and I suspect that he will use those authorities in order to get the key policy goals accomplished that he's set for the people," Podesta said in an interview Sunday, referring explicitly to inherent constitutional powers as well as legislation. "Political power gives him the capacity, I suppose, to kind of roll over his opposition, but what he's shown is a keen understanding that lots of change comes when you have dialogue, reach out to Congress and take account of it. That's not to say he'll adjust the goals that he laid before the public in the election."
Here is a classic political tension: the struggle between philosophical considerations and immediate practical ones. So, for example, that executive overreach may be deplorable but that lovely power could be lawfully useful in getting the immediate agenda passed. (The same tension plays out in the debate over whether Bush administration officials should be investigated and prosecuted—it may be theoretically desirable but also may not sync with immediate political needs.)
This is why presidents so rarely relinquish power that their predecessors have seized. We'll see what Obama does.