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Refitting the Presidency to the Constitution
The 44th president will assume office with powers greatly enlarged by his or her predecessor. Drawing on recent precedents, the next president could launch preemptive wars with only minor interference from Congress, ignore the ancient right of habeas corpus and imprison political enemies, spy on American citizens without serious legal restraint, use practically any federal agency for political purposes, manipulate the press in ways inconceivable prior to 2000, corrupt the federal justice system for political gain, destroy evidence in criminal cases, use the Justice Department to prosecute members of the opposing party, offer lucrative no-bid government contracts to friends, expand the creation of private security armies, use torture, create secret prisons, assassinate inconvenient foreign leaders, circumvent laws with signing statements, and a great deal more. Such things are now possible because the system of checks and balances carefully written into the Constitution and explained in great detail in the Federalist Papers were weakened as a result of historical circumstances of the 20th century, but systematically and with great forethought by the administration of George W. Bush.
Said to be necessary in order to protect the country from terrorism, the expansion of presidential authority in truth was carried out by neo-conservatives who in the smoke and ashes of 9-11 smelled opportunity. The result is James Madison's worst nightmare: the unification of once carefully separated powers of governance -- executive, judicial, legislative -- in the hands of a single faction along with substantial control over the press, radio, and television and an extensive police and surveillance apparatus he would have loathed.
The surreptitious and perhaps fraudulent manner by which presidential powers were recently expanded has greatly diminished trust and respect for the office at home and abroad. But unless explicitly repudiated by the next president and prohibited by law, the precedents of the Bush presidency will stand. The expanded powers of one president typically are carefully guarded by their successors. Republican or Democrat the next president will be advised to distance the office from the more controversial actions of George W. Bush, but only as a matter of expediency, not for reasons inherent in the Constitution or the law. If so, we will have crossed the line into executive tyranny.
Acquiescence in the unlawful enlargement of presidential power is neither right nor necessary. The next president would be well advised to support the appointment of a special prosecutor to thoroughly investigate the possible illegalities involved in the recent expansion of presidential power not to exact political revenge, but as the first step toward recalibrating the presidency to the Constitution. Second, he or she should appoint a Blue Ribbon panel of experts in Constitutional Law and the presidency to make recommendations to Congress about the restoration of the office.
Many will disagree, saying that learning the truth would be unnecessarily divisive and a waste of time in the face of more pressing business. To the contrary, we the people, Republicans, Democrats, and independents alike, will need to know the truth in order to reestablish the rule of law in the highest levels of government and restore trust, credibility, and respect for the office of the president now tarnished by the systematic abuse of power and excessive secrecy. Otherwise, we invite worse abuses of power in difficult times ahead.
A restored presidency is a prerequisite to successfully meet the challenges of the emergencies posed by climate change, the end of cheap oil, and the effort to build a sustainable global civilization. In coming decades a great deal will be required of the American people. If we are to respond with renewed patriotism and vigor we will need to know that we are being told the truth and that we are being led by a president who is both enabled and constrained by the law.
David W. Orr is the Paul Sears Distinguished Professor of Environmental Studies and Politics, Oberlin College and James Marsh Professor at Large, University of Vermont.