Imperial No More?

No more of this, please

No more of this, please

“The next president will enter office as the most powerful president who has ever sat in the White House.”

This quote from law professor Jack Balkin came a few weeks before the November election (and appears in an NYT Magazine cover article I just got around to reading). I suppose we liberals/progressives should be glad our guy is the one inheriting that power. Right?

Uh, not me. I don’t want any president to have the power Bush has accrued for himself in the name of fighting a never-ending war against a largely unseen enemy. Even before 9/11, Dick Cheney made it his goal to expand the power of the executive vis-a-vis the other two branches. He largely succeeded, though in a few cases, the Supreme Court slapped Bush’s wrist, regarding the status of prisoners at Guantanamo. spineless-congress-lk0710d

Congress, however, was mostly MIA, meaning we were SOL. The lawmakers’ unwillingness to challenge Bush was in many cases a direct result of being more concerned about party loyalty (Republicans) or being painted as unpatriotic and hence risk losing the next election (Democrats). What the votes really should have been about was preserving the integrity of the legislative branch and not forfeiting its Constitutional obligation to serve as a check on imperial presidents.

Is there a danger Obama will continue Bush’s end-run around the notion that we have three branches of government, each supposed to check and balance the other two? I don’t know. But he comes in during a time of economic crisis and while we are still fighting two wars, so he might continue the historical trend of using such dire incidents to bolster presidential power. And I have read that Obama and his advisors have looked to the Bush/Rove team as an example of how a president should stay on message and try to shape events as much as possible (sheesh, what a less-than-comforting thought).

Of course, there are huge differences at work here too. Obama has served in legislatures throughout his political career, so he might be more predisposed to working with lawmakers and not seeing them as the enemy. And with his background in law, I’m hoping he has a deep and abiding respect for the Constitution, just as Bush’s experience in business before coming to DC gave him a deep and abiding respect for…umm, baseball.

But Obama’s background in constitutional law just might give him the intellectual ammo he needs to find the loopholes in the Constitution, or come up with seemingly plausible rationales for flouting it. Again, I don’t know, and nobody does. With all the feel-good talk of hope and change the last few months, I don’t want to think the worst of the guy. But I am a realist. He has an arrogant streak, as I guess all elected presidents do (Gerald Ford never struck me as arrogant…), and if he feels he has some special destiny at work here, who knows what he will do to circumvent institutional restraints.

You might say, if you’re an Obama supporter, “So what if he gets a little imperial. He’ll be imperial in a good way, promoting the programs we want.” Maybe. But he already showed himself a supporter of dubious laws regarding civil liberties when he voted for the new version of FISA in ‘O8 during the campaign (the law that lets the Feds listen in on foreign conversations without a warrant, though they must get approval after the fact from a special court). He seemed to comfortably move to the center on certain issues during the campaign and since Election Day, a fairly typical tactic for Democrats elected president (as discussed here in Salon).  And as others have noted, the many Clinton-era retreads in the new cabinet doesn’t feel much like change – or an endorsement of anything but a very status-quo agenda, as least as far as how the government is run. Yes, Obama will be greener, he will do more for the poor. He will not end the influence of the big institutions that control politics. He probably couldn’t if he wanted to, I know.

More important than any one specific act Obama may nor may not do, if he continues or strengthens the latest version of the imperial presidency created by Bush, it means the next Republican will feel no compunction about doing the same thing. And who knows what kind megalomaniacal or ideologically rigid person that could be? No, to quote a movie that played such a key role in the president-elect’s life, he’s gotta do the right thing. Step away from the power-grab and step into the warm, embracing Constitutional light. Don’t shun the legislators who challenge you for valid reasons (of course, the Republicans will mostly do it for partisan reasons, but I’m sure lawmakers on both sides of the aisle will have legitimate concerns). We need a Congress with some spine when it comes to issues that upset the constitutional balance of power.

For myself, I would like to see the new president do two small things that will repudiate Bush’s willful ignorance of the limits on a president. Disavow the infamous signing statements, which were one of the most obvious, if not always visible, signs of the grab for power. And overturn the 2001 executive order that made it harder for historians and reporters to access presidential papers. We need to know more about what presidents have done, not less, to understand how some have tried to aggrandize their office at the expense of the Constitution and the country’s well-being. And doing so would show that Obama enters his presidency believing he will do things properly, he will have little to hide. Unlike Bush, who even in that first year knew he wouldn’t want people digging too deeply into the lesser moments of his (or his father’s) presidency.

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~ by mburgan on January 11, 2009.

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