Monday, November 10, 2008

Notes on the Executive Branch

After an historical election cycle, we must now get back to the business of governing.  With that in mind, we should consider the role of the executive in history, and in the coming administration.

When considering history, an article in Sunday's New York Times - "After the Imperial Presidency" - outlines the history of executive privilege, with anecdotes from the early days of the republic to the outgoing administration.   Among the more interesting observations is that after the Clinton investigations and impeachment, George W. Bush was supposed to be the first "post-imperial president."   He was supposed to enter a presidency weakened by his predecessor.  But a funny thing happened on the way to the Oval Office.  Under the guise of national security - where the president admittedly enjoys great powers - the Bush administration:

"claimed the authority to deny captured enemy combatants - U.S. citizens and non-citizens alike - such basic due process rights as access to a lawyer.  It created a detention facility on Guantanamo Bay that it declared was outside the jurisdiction of the federal courts and built a new legal system - without any input from Congress - to try enemy combatants.  And it argued that the president's commander-in-chief powers gave him the authority to violate America's laws and treaties, including the Geneva conventions.

The assertion and expansion of presidential power is arguably the defining feature of the Bush years . . . [As a result, the] next president will enter office as the most powerful president who has ever sat in the White House."

The article is a must read, both for the history it conveys and its discussion of the inner workings of the sometimes contentious relationship between Congress and the Executive.

Having examined the past, what does the future hold for the executive branch?  Well, one would hope that a former professor of Constitutional Law would understand the job description.  But as we all know, the trouble with the Constitution is that there are very few bright line rules.  It's possible that President Obama could use his legal acumen to continue to expand the powers of the executive, as argued by Judge Posner at the VC.  However, I would posit that if the opinions in Hamdi, Hamdan, and Boumediene are any indication, after the Bush administration the Court will not treat an expansive reading of Article II in a generous manner.

Do we have any indication at this time of the approach President-Elect Obama might prefer?   Well, as the NYT article notes, both President-Elect Obama and Senator McCain had little to say on the issue during the campaign (and admittedly, the media did not press the issue), so there aren't many tea leaves to be read.  Nonetheless, word on the street is that the President-Elect is considering a plan that will shutter Guantanamo Bay and try the alleged combatants in U.S. criminal courts or national security courts.  Although some doubt Obama's ability to successful close the prison, if he does, that might send a clear signal to friends and foes alike that he does not intend to further elasticize the presidential role.


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