The Bush administration has dramatically expanded executive authority over the past seven years, and the next chief executive will have to decide whether to cling to that power or relinquish it. That decision, according to former Justice Department official Bruce Fein, "is the entire crux of what we are as a country."
Fein considers himself a conservative. He served in the Reagan administration, but he has lately been a gadfly over executive power. He says President Bush and Vice President Cheney have set precedents "that will lie around like loaded weapons, ready to be used by any successor, certainly one who doesn't explicitly renounce them."
So far, Fein is concerned that neither Sen. Barack Obama nor Sen. John McCain has done enough to explicitly renounce Bush's stance on executive power.
The debate over executive authority is fundamentally about the three-branch structure of the American government and the system of checks and balances. Bush has tried to shift the balance of power toward the executive in nearly every major recent legal battle, from domestic surveillance to Guantanamo Bay.
McCain and Obama have generally distanced themselves from Bush on these issues.
For example, Bush frequently attaches signing statements to laws, asserting the right to ignore parts of a law that he disagrees with. McCain says he would never do that, and Obama says while he might use signing statements to clarify his position on an ambiguous law, he would not abuse signing statements to undermine the will of Congress.
On the issue of torture, Bush says he can authorize a harsh interrogation technique that Congress has outlawed. McCain and Obama say if Congress forbids an interrogation technique, they would not have the authority to authorize it.
On whether the president needs Congress' permission to go to war, McCain said during one of the Republican primary debates, "if it's a long series of buildups where the threat becomes greater and greater, of course you want to go to Congress." However, he said, "if the situation is that it requires immediate action to ensure the security of the United States of America, that's what you take your oath to do when you're inaugurated as president." Obama has taken roughly the same position. Bush, in contrast, has asserted the right to wage war without congressional authorization.
McCain legal adviser and former Solicitor General Ted Olson says McCain's background as a senator accounts for the difference between McCain and Bush on some of these issues. McCain "feels strongly about the powers and prerogatives of the legislature," Olson says. "That's part of his DNA by this period of time. That was not true with respect to President Bush."
Obama also comes from the Senate, and he studied separation of powers in depth when he taught constitutional law at the University of Chicago. He generally presents himself as an antidote to the overreaching of the Bush administration.
For example, in an interview Saturday, Obama said Chief Justice John Roberts "has been a little bit too willing and eager to give an administration, whether it's mine or George Bush's, more power than I think the Constitution originally intended."
McCain, in contrast, has said he would appoint judges who are similar to Roberts.
Of course, a candidate can renege on any campaign promise once he's elected president. University of San Diego law professor Saikrishna Prakash believes that's especially tempting when it comes to promises to relinquish power. "I imagine there will be changes in position, at least to some extent, on the part of both candidates once they actually become president," Prakash says. After all, presidents tend to think of themselves as using power only for good.
Olson agrees. He says most of the time, when candidates of either party take office as president, "they feel not only must they exercise the powers of the executive under the Constitution, but they must protect the powers of the presidency for their successors."
Obama legal adviser Laurence Tribe, a law professor at Harvard, says Obama sees it differently: "He believes that it is not really in the interests of a president who wants to serve the nation to take the law into his own hands and shred it when it's convenient."
Fein, however, remains disappointed in both men. He believes the next president needs to take legal action against Bush and Cheney, "not because we want to be vindictive, but because we care about the Constitution." That is a step that neither candidate has shown any interest in taking.