OBAMA'S MOMENT ARRIVES

Historians Say He Could Redefine the Presidency

By Barton Gellman
Washington Post Staff Writer
Tuesday, January 20, 2009

Barack Obama takes office today with a realistic prospect of joining the ranks of history's most powerful presidents.

On First Full Day, Obama Will Dive Into Foreign Policy

The more familiar observation, that he confronts daunting trials, enhances that prospect. Emergencies have always brought commensurate new authority for the presidents who faced them, not only because the public demanded action but also because rival branches of government went along.

Obama arrives with a rare convergence of additional strengths, some of them inherited and some of his own making. Predicting a presidency, to be sure, is hazardous business, and much will depend on Obama's choices and fortune. But historians, recent White House officials and senior members of the incoming team expressed broad agreement that Obama begins his term in command of an office that is at or near its historic zenith.

"The opportunity is there for Obama to recast the very nature of the presidency," said Sean Wilentz, a presidential historian at Princeton. "Not since Reagan have we had as capable a persuader as Obama, and not since FDR has a president come in with quite the configuration of foreign and domestic crises that open up such a possibility for the reconstruction of the executive."

No president has begun his term with so broad a wave of public confidence -- 78 percent approval in the most recent Gallup poll. There are precedents for single-party control of the White House and Congress, but the early signs suggest that House and Senate Democrats will be far more united in loyalty to Obama than their counterparts were to President Jimmy Carter. The Republican opposition, by contrast, appears to be as fractured as at any time since Barry Goldwater's landslide defeat in 1964. If Obama keeps the loyalty of the online social networks he used to win election, with unprecedented success in fundraising and recruiting, his White House could be the first to harness a meaningful grass-roots movement as an ongoing tool of governance.

The federal government itself is a far more potent instrument, in its breadth and depth of command over national life, than it has ever been before. Largely in response to the threat of terrorism, the Bush years and President Bill Clinton's two terms saw "an incredible period of state-building that's unrivaled in American history except by the creation of the national security state in the 1940s and '50s," said Jack Balkin, a professor of constitutional law at Yale whose blog, Balkinization, is often cited by members of the Obama team.

By necessity or design, and most often by passive acquiescence, Congress and the courts have let presidents do most of the steering of the new and expanded institutions that govern finance, commerce, communications, travel, energy production and especially intelligence gathering. When there were struggles for dominance among the three branches, most of them ended with lopsided victories for the executive.

The legislative power to declare war and ratify treaties, for example, has been deeply eroded by the practice of presidents to launch military operations on their own and to make major international commitments -- such as December's "status of forces" pact with Iraq -- by "executive agreement" rather than by treaty requiring a two-thirds Senate vote. After lengthy controversy over warrantless domestic surveillance in the Bush administration, Congress authorized the program without obtaining any details about what, exactly, is collected and how it is used.

"Really, in the last 80 years we've seen a gradual, and at times not gradual, concentration of power in the executive office," said William P. Marshall, who served as deputy White House counsel under Clinton.

Obama's style of governance will not be President George W. Bush's, but it may not differ quite as much as some supporters expect.

Bush defined his power as supremacy over Congress and courts, adopting Vice President Cheney's doctrine of unbounded freedom of action for the commander in chief and chief law enforcement officer. Eight years of legal and political combat have dealt setbacks to those claims, primarily regarding the detention and treatment of suspected terrorists.

Some Bush administration lawyers now maintain that the president's power has suffered because of it.
Obama's Moment Arrives

"The president's executive authority has been diminished as a result of the national security legal controversies over the last eight years," State Department legal adviser John B. Bellinger III said in an interview. "I don't think the courts and Congress are just going to back off completely because the Obama administration is in office."

Jack L. Goldsmith, who held a senior post in the Justice Department, said White House overreaching brought a backlash in which "judicial power has increased at the expense of presidential war power."

Even so, Bellinger and Goldsmith acknowledged that the president usually emerged the victor in practice.

The Supreme Court and Congress insisted, for example, that Bush comply with the Geneva Conventions' ban on "cruel" and "inhuman" interrogations, but thus far they have left it up to the president to interpret those terms. No case or statute impaired the Bush administration's assertion that waterboarding -- a form of controlled suffocation that mimics drowning -- is lawful even now.

Geoffrey Stone, a scholar of executive authority at the University of Chicago Law School, said of Bush: "By overstating something, sometimes you may lose 90 percent of what you overstate, but you wind up moving the residual center line. . . . The limits that have been placed have not come close to the powers that have been concentrated."

Obama disagrees with Bush on waterboarding, and he has pledged to take greater heed of Congress, but he has not disowned the broader assertion that a president may disregard a statute or judge's ruling. Dawn E. Johnsen, Obama's nominee to lead the Justice Department's Office of Legal Counsel, is best known for vigorous critiques of overreaching by Bush and Cheney. But her popular commentaries in Slate and elsewhere have diverted attention from scholarly writings that make a subtler point. Just last year, in the Boston Law Review, she affirmed that "in many circumstances, Presidents may develop, declare, and act upon distinctive, principled constitutional views that do not track those of the Supreme Court or Congress." The trouble with Bush was not that he asserted the power, she wrote, but that he used it wrongly.

A parallel point of view applies to legislation, and to the division of labor between statutes and executive orders.

John D. Podesta, a former White House chief of staff who led the new administration's transition team, was careful to distinguish between Obama's promise to "keep the dialogue with Congress" and his willingness to compromise on core objectives.

"He certainly comes into office with a very powerful set of executive authorities, and I suspect that he will use those authorities in order to get the key policy goals accomplished that he's set for the people," Podesta said in an interview Sunday, referring explicitly to inherent constitutional powers as well as legislation. "Political power gives him the capacity, I suppose, to kind of roll over his opposition, but what he's shown is a keen understanding that lots of change comes when you have dialogue, reach out to Congress and take account of it. That's not to say he'll adjust the goals that he laid before the public in the election."

At the same time, the Obama team is keenly aware, as one top-ranking member of the incoming White House staff said, that "how he chooses to lead, and the kind of choices he makes, will dictate how it all comes out." He added: "Presidential leadership is an ephemeral thing if it's not exercised well or not focused on the right objectives."

Information technology, and the executive's control of its fruits, are widely cited in explaining presidential dominance over Congress. Every recent president has regarded himself as the primary judge of what information to share and what to withhold on grounds of executive privilege or national security.

Here Obama inherits a battle from Bush and Cheney. The Bush administration resisted demands from the House Judiciary Committee, under chairman John Conyers Jr. (D-Mich.), for testimony and records that might expose improper political motives for firing U.S. attorneys. When the committee subpoenaed former White House counsel Harriet E. Miers and Chief of Staff Joshua B. Bolten, the administration asserted a startling new claim that "the president and his advisers are absolutely immune from testimonial compulsion by a Congressional committee," meaning that Miers and Bolten not only could decline to answer specific questions but need not even show up.