Obama and the imperial presidency
Jack Balkin
guardian.co.uk
The Bush administration has worked hard to increase presidential power. Will
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.
more at:
http://www.guardian.co.uk/commentisfree/cifamerica/2008/nov/12/obama-white-house-barackobama