This is a brief follow up to the excellent posts of Curt Bradley and Eric Posner (here) and Chris Schroeder (here) on the continuities and discontinuities from the Bush Administration to the Obama Administration. It bears noting that at this point, all we really know about the Obama Administration is what it has done. We don’t know what its legal theory of presidential power might be. Whatever else we might say about the signing statement that President Obama issued, each of its objections could be raised by a President who disagrees with expansive theory of presidential power that the Bush Administration accepted. That statement simply did not set forth its underlying legal analysis. (It is perfectly appropriate for a presidential signing statement to refrain from this sort of analysis, but the Justice Department presumably conducted such analysis and it would have been salutary for this to have publicly released as an accompanying document with the signing statement.) On the other hand, it is possible that the Obama Administration’s divergence from Bush policies, on detainee treatment for example, is rooted not in a different legal theory of presidential power, but in a different policy/political view of what approach will be most efficacious. At this point, it seems to me unjustified to claim that the Bush and Obama Administrations are essentially the same in their legal theories regarding presidential power. It is also too early to definitively conclude that they are fundamentally different.
This is as it should be. First, the Senate has not yet confirmed Dawn Johnsen, the nominee to head the Office of Legal Counsel. Because OLC is the office that should be in charge of formulating the Administration’s legal theory relating to presidential power, it would be premature for the Administration to articulate a theory of presidential power. Second, the formulation of the Administration’s view of the law of presidential power is a significant undertaking. The Clinton Administration rejected the unitary executive theory of its predecessors but took over three years to craft the memorandum setting forth its views. In her confirmation hearings, Dawn Johnsen has expressed her commitment to a set of procedures that should guide OLC. These guidelines demand thorough research as well as consultation with other components of the government that possess operational expertise. It may be, then, that some of the seeming continuity from the Bush Administration is actually a sort of holding action taken until OLC is fully constituted and has an opportunity to review thoroughly and systematically the legal positions of the previous Administration.
It seems unrealistic to expect a full articulation of the Obama Administration’s theory of executive power any time soon. For now, we are left to read tea leaves and to debate their significance. The best wisdom on this subject may have come in the New York Times’s editorial on signing statements: the new Administration’s practice and theory of executive power “will bear watching.”
