Is there some value to Hillary winning, in this sense?

Justin's comment in an earlier thread raises a point which I had tried to frame in comments at Althouse recently. Justin "think[s] that Bush has pushed his powers beyond the Constitutional limits," and he "do[es] not see HRC pulling back if elected." He thus echoes a concern held by some GOP critics of the Bush administration who argue that a liberal successor will exploit the expanded executive powers they inherit from this administration.

To some extent, I understand and share that concern, because I likely disagree with many of the goals toward which that power will probably be directed. Nevertheless, I wonder: Might there be some utility to Hillary embracing both a robust and unitary executive? (Although I think we can reasonably infer from her disclaimer of belief in the unitary executive that she doesn't see herself as embracing a robust executive either, insofar as most of those who rail against the former don't seem to understand that it has nothing to do with the latter.)

To clarify terminology: By a "robust executive," I mean a view or theory the executive branch ought to be relatively powerful vis-a-vis the other two branches of government (and in light of Medellin, I suppose we ought to assume powerful vis-a-vis the states). I use that term here to differentiate that belief, which is a concept of the interbranch power of the executive branch, from the unitary executive doctrine, which is often misunderstood or misrepresented as standing for precisely that, but is in fact a purely intrabranch theory that describes the power of the President vis-a-vis other executive branch actors. (Simply put, in a refrain familiar to regular readers, the unitary executive doctrine holds that "[t]he Constitution requires that the President must retain ultimate authority over all executive branch activity ... [and that all other e]xecutive branch actors are intermediaries for the executive power, and surrogates for the President in whom that power is vested by the Constitution"). These are two different concepts, and one can take independent views on their merits.

Still, those who believe in a unitary executive tend to also believe in a robust executive, and Dick Cheney is no exception. Cheney's view, as Frontline recently (and surprisingly evenhandedly) recounted, and which is by no means idiosyncratic, is that the Presidency was emasculated after Watergate, its power sapped by Congress in retaliation to Nixon -- the War Powers Act and FISA would be examples of the sort of thing they're talking about -- to the point where the Presidency was subsequently not only weaker than is advisable as a normative matter, but weaker than the Constitution demands. They argued that the Presidency needed to reclaim the authority it ceded after Watergate, and although it's easy to be cynical about it, I think the record shows (strongly enough that even PBS had to concede the point) that Cheney et al have held those views, and pursued the goal of restoring what they see as the balance, for years, long before increasing the authority of the Presidency meant increasing their own power.

I think Cheney would say that the Bush administration has succeeded in that goal, to a great extent. If Hillary comes into office and buys into the same authority (focussing here about the robust executive), then one way of putting my question is this: isn't the debate then over, and hasn't Cheney's project succeeded, because the debate will shift after Presidents of both parties firmly buy into a vision of Presidential power more expansive than that extant among liberal members of the post-Watergate Congresses?

One way to qualify this for the skeptical reader might be to point out that surely one can agree to a greater or lesser extent with the critique of the post-Watergate regulation and sapping of Presidential authority without accepting that the President (or the executive branch) ought to have as much power as this administration has claimed. To put it another way, I think one can still argue that the Bush administration has claimed too much territory while still believing that it was valid for it to try and reclaim some of that territory. It does not follow, if you'll permit a metephor in somewhat poor taste, that if we today permit Germany to reclaim the Rhineland, then tommorow we must accept the validity of its claims on Austria, the Sudetenland, and so forth. It is, after all, a matter of historical record that the powers of Congress and the Presidency have waxed and waned with regard to one another - the Presidency reached its early zenith under Jackson, hit a perigee under Grant, and ramped back up as post-Civil War Congressional activity gave way to the guilded era and the original do-nothing Congresses.

It seems all-but fictitious to suggest that there is a "right" answer to the balance of power question, or at least, that the Constitution itself dispositively answers all such questions on a minute level. (Having said many times that the question of inherent executive authority is about the hardest question in ConLaw, I lean towards Justice Jackson's view in Youngstown rather than Cheney's). The Constitution permits play in the joints; that's part of its design, and we should be skeptical of demands to ossify all such questions into rules - which is one reason why the courts have generally stayed out of the fray.

So yet another way of putting my question is this: this President's claims on any increased authority have met with stringent hostility from his critics primarily because they have come from this President; if one thinks that the Presidency as an institution ought to have (re)claimed any amount power vis-a-vis Congress, might the use of (at least some of) that power by a Democratic President signal a normalization of the debate? Might it allow us (or improve our ability as a society) to have a conversation about how much power the President is given by the Constitution, and normatively ought to possess and/or exercise (compare the familar refrain that a jury has the power to judge the law, but not the right - the Constitution is not the sole source of authority) without the debate being quite so bound up in hostility to this President or that President? That is, could it either uncouple (or at least limit) the partisanship angle, allowing us to debate the issue on a more principled bases, or in the alternative, rebase the status quo, leaving us with a President that has more power than Presidents before Bush (and more akin to pre-Nixon administrations) yet less power than the present administration has asserted?

Post facto:
How the left will learn to stop worrying and love executive power (4/7/08)
First act of new Clinton Administration: Reverse first act of old Clinton Administration (4/7/08)
Whither the unitary executive? (10/17/08) (followed)
On the other side of the web today (12/16/08) (followed)