Legal Commentary

Indeed, as I've written elsewhere, Obama takes office as probably the most powerful president in American history, in terms of what he can do and how he can project his power both around the world, in the economy and through the new forms of surveillance power that Congress has given him.

And that's really the point: Cheney's mistake was assuming that more power comes through unilateral action and through doing things in secret-- like torture.
But if you want a strong executive, you don't really need to act unilaterally or always in secret. All you have to do is to get Congress to bestow power upon you, which recent Congress's have been more than willing to do, in the AUMF, the Patriot Act, the Protect America Act, the FISA Amendments Act and the Military Commissions Act.

Barack Obama has the opportunity to be a very strong president, not an enfeebled one, in part because he has enormous Congressional grants of power and, given that his party controls Congress, has the opportunity to ask for even more power.

It's worth noting that Obama has another source of power that Bush did not have: he has an enormous campaign operation, completely with mailing lists and volunteers that are able to do work in civil society and to pressure Congress to do his bidding. This L.A. Times article notes that Obama's campaign infrastructure gives him opportunities that few Presidents, if any, have had to create a civil society powerbase along side his existing government powerbase. How he will use this power is anybody's guess, but this is not a case of an enfeebled president.

Obama may make mistakes that undermine his authority. But in terms of the possibilities of power, the Presidency has never had more tools at its disposal.

The current focus on unilateralism and on Bush's successes and failures distracts us from the larger story: the Presidency is stronger now because it has been the beneficiary of a long term process of state building, creating the National Surveillance State. This exercise in state building involves the work of all three branches, not just the Presidency; it predated George Bush and will continue long after he is gone. Obama, who takes office after Bush, will be the next participant in a much longer term trend. This trend in Presidential power building poses enormous risks for liberty whoever occupies the White House, and will require the construction of institutional checks and balances to compensate. This is precisely the wrong time to worry about an enfeebled presidency, or of a pendulum swinging backwards to the time of Warren Harding and Calvin Coolidge. The American Presidency is currently on steroids, and will continue to be for a very long time to come.

Full post as published by Balkinization on January 15, 2009 (boomark / email).