Obama and the Imperial Presidency
The Bush administration has worked hard to increase presidential power. Will Barack Obama give it up?
By Jack Balkinhttp://www.guardian.co.uk/commentisfree/cifamerica/2008/nov/12/obama-white-house-barackobamahttp://www.guardian.co.uk/commentisfree/cifamerica/2008/nov/12/obama-white-house-barackobama
November 12, 2008 "The Guardian" - -Barack Obama enters the White House with more constitutional and legal power than any president in US history. One of his biggest problems will be figuring out what to do with it.
For seven years, the Bush administration has tried to increase presidential power through secrecy and unilateral action, claiming constitutional authority to disregard statutory restrictions and congressional oversight. Many of its gambits backfired. But despite its clumsiness, the Bush administration did not materially weaken the American presidency. Far from it. Obama will begin with broad new powers over domestic and international surveillance and congressional approval for military tribunals and existing interrogation and detention practices. He will oversee a new bureaucracy devoted to homeland security and greatly expanded intelligence services. He will command military forces and state-of-the-art weaponry strategically placed around the globe. And thanks to the recent bail-out bill, Obama's new Treasury secretary will enjoy enormous discretion to nationalise the banking industry and reshape the financial sector.
To top it off, Obama will begin his first term with overwhelming public support - if not outright adulation - and a Congress controlled by members of his own party. No matter how much the current president damaged the prestige of his office, his successor will be all the more powerful and influential simply by not being Bush.
Many of the problems Obama will face stem from the presidency-on-steroids he inherits. First up is what to do with the Guantánamo detainees. If Obama closes the infamous base, he will either have to release the detainees or bring them to the US for trial. If he chooses the latter approach, he will have to decide whether to use the ordinary criminal process or devise a new set of national security courts to replace the defective military tribunals Congress approved in 2006. Either solution will pose enormous technical and logistical problems, and separate national security courts create significant risks to civil liberties.
Next, Obama will have to decide whether to rescind a series of secret opinions and orders authorising the Bush administration's detention, surveillance and interrogation practices. Secret laws were a hallmark of the Bush years. For all the criticism of Bush administration policies leaked to the public, there may be many others even more morally and legally troublesome. Obama will face difficult decisions about which decisions to rescind and which to retain.
Giving up power is harder than it sounds. Obama's attorney general will have to craft new limits and new methods of accountability. This, in turn, may invite intense scrutiny of what happened in the immediate past. Both Congress and the public may demand to know about secret orders and opinions authorising torture, domestic spying or other forms of illegal activity. Obama and his advisers will have to decide whether political prudence and national security require them to conceal the previous administration's dirty little secrets.
Indeed, the more we find out about the excesses of the Bush years, the louder will be the demands for investigating and prosecuting Bush administration officials for violating national and international law. Whether or not such prosecutions are deserved, they threaten to derail the next president's positive agenda. Political opponents will scream that the new administration is criminalising ordinary politics and punishing patriots. Bipartisanship will quickly become difficult if not impossible. This may tempt Obama to sweep past wrongdoing under the rug, hoping that he can reform the executive branch entirely in secret. But secret reforms raise many of the same problems of accountability as the secret laws they replace.
Finally, Obama has been handed new tools for an ever-expanding national surveillance state, which employs information collection, collation and analysis as key methods of governance. Most members of Congress have no idea of the new powers they gave the president in the byzantine Foreign Intelligence Surveillance Act Amendments Act of 2008. Many parts of the new law are either sketchy or opaque. Most of the details will have to be worked out by - you guessed it - the executive branch.
The Bush years demonstrated that congressional oversight of intelligence gathering was rarely effective, and with judicial review significantly constricted in the new surveillance act, the civil liberties of Americans will depend heavily on how the Obama administration implements the vast new powers it has been given. It can create a series of checks and balances within the executive branch to limit overreaching and prevent abuse. Or it can shape these new institutions much as the Bush administration wanted: to maximise discretion and avoid accountability. It is largely up to the new administration how to proceed.
Armed with abundant public support, a friendly Congress and vast new grants of authority, the next president holds the fate of the country in his hands. How he tempers his power may be as important as how he wields it.
Jack Balkin is Knight Professor of Constitutional Law and the First Amendment at Yale Law School, and the director of Yale's Information Society Project.
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