President Barack Obama has a lot on his plate. But his first priority should be to look at his own job description. Over the last eight years, it has been badly warped.
Obama needs to figure out what to do in Iraq and Afghanistan, on energy policy and homeland security. And he clearly has to focus on the country's economic meltdown. But the new president also needs to make it clear to supporters and political opponents alike that he will operate exclusively within the law.
That is crucial to accomplishing his goal of transcending the hyper-partisanship that has permeated the federal government in the last two decades. It would also help further the spirit of international cooperation Obama hopes to achieve.
But it would also be a marked departure from the last eight years. The most dangerous aspect of the Bush administration was its insistence that the president is beyond the law.
That is the essence of the "unitary executive" theory as pushed by former Vice President Cheney's office and former Justice Department official John Yoo. As interpreted by the Bush administration, that theory says that all executive authority is embodied in the president and that neither Congress nor the courts can interfere. It is the thinking that led to the legal quagmire at Guantanamo, and to ignoring the Geneva Conventions, sanctioning torture and allowing warrant-less electronic spying on American citizens on U.S. soil - solely because the president said so.
It also led to Bush's controversial use of "signing statements." Presidents have historically used such statements to endorse or comment on a law or to make some political point. Bush, however, has used them in a way that mimics an unconstitutional line-item veto. He has declined to enforce parts of laws he does not like, announced that he would not obey congressional requirements and interpreted the law's intent, roles best left to the courts.
The Constitution gives the president an out when faced with what he considers a bad law. If he disagrees with all or part of a bill, or believes it an unconstitutional restraint on his authority as president, he can veto it. But that is a yes-or-no proposition. There is nothing that says he can take part of a law and ignore the rest.
To the more extreme advocates of the "unitary executive" theory, however, that does not matter. Writing in The Atlantic, University of Baltimore law professor Garrett Epps, traces the history of such thinking to the founding fathers' deference to George Washington. Epps says that the framers, fully aware that Washington would be the first president, did not want to offend him by seeming to question how he would govern. They therefore described the president's duties and responsibilities vaguely.
Alexander Hamilton then argued that presidential power was therefore essentially unconstrained. As Epps writes, "Hamilton's president existed, in effect, outside the Constitution."
Richard Nixon agreed, and saw no reason to sugarcoat it, saying that "when the president does it that means that it is not illegal."
The American people did not buy that, and there is no reason they should now. Epps suggests some intriguing constitutional changes to rein in future presidents. But for now, President Obama should set the example he promised and show the world that a strong president can also be a law-abiding one.