It is no secret that long before his election as vice president, Dick Cheney was deeply committed to the proposition that the executive branch had been dangerously diminished in the aftermath of the Watergate scandals. The period after Watergate and the Vietnam War, Cheney told reporters on Air Force Two in 2005, was "the nadir of the modern presidency in terms of authority and legitimacy," a period in which the chief executive's ability to lead "in a complicated, dangerous era" was severely diminished (Baker and VandeHei 2005). Cheney returned to the White House as the second-ranking official in the George W. Bush administration in 2001 determined to restore executive branch power and autonomy. To do so, Cheney pushed others in the administration to aggressively press legal arguments and constitutional assertions not only to achieve their immediate policy goals, but also to set lasting precedents, fortifying the nation's predisposition toward deference to--and acceptance of--executive prerogative powers in foreign and domestic affairs alike (Cheney 1990, 2009).
Just nine days after Bush and Cheney were inaugurated in 2001, the White House hosted a series of energy policy discussions with key industry leaders. When asked to reveal the names of those involved in drafting these policy proposals, however, the White House refused, asserting sweeping new claims of executive privilege (Gellman 2008; Hayes 2007; Savage 2008). (1) This, it turns out, was only the first of a long train of arguments asserting executive authority. The Bush legal team fought battle after battle in areas ranging from questions about the interpretation and application of treaties (Goldsmith 2007; Yoo 2005) to wiretapping (Fisher 2007a, 2008a; Savage 2008), and from war powers (Fisher 2004) to military commissions and interrogation techniques. But will these efforts succeed in fundamentally shifting the national understanding of the allocation and separation of powers? Will the Bush-Cheney legal legacy in the separation of powers be a lasting one?
Early indications suggest not only that the Bush lawyers failed to embed and entrench their claims, but that the U.S. Supreme Court, along with the new Barack Obama administration, actually may be returning to the more traditional foundations of executive power, built on statutes and long-standing judicial doctrine. Far from shifting our constitutional understanding of executive power, the Bush-Cheney legal legacy may be a return to the very assumptions and foundations they sought to replace.
Shifting Default Assumptions in the Separation of Powers
Bush administration lawyers recognized that how they won their cases was critically important if they wanted to fundamentally reallocate power and authority to the executive branch. By pressing the Supreme Court to revise and redirect the general rules, starting points, and thresholds that set guidelines for the lower courts, the administration could shape and direct the broader standards and judicial doctrine, signaling to Congress the boundaries and limits that could (and, in the administration's view, should) constrain their choices. Borrowing from the world of computers and software design, we might think of these general rules and starting points for the analysis of the allocation of powers as the default assumptions with which judicial decision making begins. (2)
"Default settings" are those with which a computer program starts. Wordprocessing programs, for example, are designed to open with an initial template, presetting things such as the margins, size of type, and the font to be used. These can all be overridden or changed in particular cases, but they provide the initial template with which the process begins each time. Judicial doctrine--particularly for the Supreme Court--works in a similar fashion. While it does not determine the outcome in any particular case, and the Court is free to reverse or modify its own decisions, the Court does develop decision rules that provide an initial orientation to analyze particular claims (Silverstein 2009, 63-95,281-83). …