Jacob Sullum

Johnsen has not been shy about criticizing Bush. She has condemned his "extreme view of expansive presidential authority during times of war and national emergency," his promiscuous use of signing statements reserving the right to disregard the law, his "arrogant disrespect for legal constraints and for the coordinate branches' constitutional authorities," and his excessive secrecy, which makes it difficult to know when and why the president is breaking the law.

Johnsen's critique cannot plausibly be dismissed as partisan sniping. The Bush administration's abuses of executive power were flagrant enough to draw criticism not only from Democrats but also from many conservatives and libertarians who were inclined to favor Republicans or supported neither major party. Even within the Bush administration, Johnsen notes, dissidents such as former OLC chief Jack Goldsmith and former Deputy Attorney General James Comey drew the line at policies they believed were clearly illegal.

Such episodes suggest it is not completely foolhardy to hope that Democratic skepticism of executive power can survive a Democratic presidency. Last April, blogging for Slate, Johnsen reacted to the latest release of an OLC memo justifying lawbreaking in the name of national security:

"We must regain our ability to feel outrage whenever our government acts lawlessly and devises bogus constitutional arguments for outlandishly expansive presidential power. Otherwise, our own deep cynicism, about the possibility for a president and presidential lawyers to respect legal constraints, itself will threaten the rule of law -- and not just for the remaining nine months of this administration, but for years and administrations to come." Let's see how long Johnsen retains her capacity for outrage.

Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
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