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The George W. Bush administration will long be remembered for its constitutional and legal arguments on behalf of exclusive and inherent executive power. In its extreme form, this uncompromising effort appears to have failed, and may even have pushed the judicial branch to limit executive authority and return to a more traditional insistence on interbranch cooperation in foreign affairs. Ironically, the Bush‐Cheney legal legacy ultimately will depend on the Barack Obama administration's public commitments and legal arguments, but early evidence suggests that President Obama's assertions of executive power will rest less on assertions of constitutional prerogative, and more heavily on statutory delegation as well as long‐standing judicial precedent.

Samuel Alito and a new breed of conservative jurists may be opening the door to a new version of activism, developing a theory that will provide constitutional justification that breaks down the separation of powers and enabling presidents to more easily legislate from the Oval Office.

Samuel Alito and a new breed of conservative jurists may be opening the door to a new version of activism, developing a theory that will provide constitutional justification that breaks down the separation of powers and enables presidents to more easily legislate from the Oval Office. Adapted from the source document.