ROBERT SIEGEL, host:
Back to the U.S. now, and the presidential campaign. The Bush administration has dramatically expanded executive authority in the last seven years, and the next president will have to decide whether to hang on to that power or relinquish it. So where do candidates Obama and McCain stand? Well, NPR's Ari Shapiro has the latest in our series of comparisons of their positions.
ARI SHAPIRO: Bruce Fein was a senior Justice Department official under President Reagan, but lately he has been a gadfly over executive power.
Mr. BRUCE FEIN (Former Official, United States Department of Justice): To me it's the entire crux of what we are as a country.
SHAPIRO: Fein believes the next president's stance on this issue will determine whether the U.S. stays true to the founding fathers' vision.
Mr. FEIN: Precedents have been set by President Bush and de-facto President Cheney that will lie around like loaded weapons ready to be used by any successor, certainly one who doesn't explicitly renounce them.
SHAPIRO: Fein is concerned that neither Obama nor McCain has explicitly renounced enough. For some context, let's return to the early 1980s.
(Soundbite of song "The Three Ring Government")
SHAPIRO: Remember the "Schoolhouse Rock" cartoons? This all goes back to the three branches of government: executive, legislative, judicial.
(Soundbite of song "The Three Ring Government")
Ms. LYNN AHRENS (Singer): (Singing) No one part can be more powerful than any other is. Each controls the other, you see, and that's what we call checks and balances. Well…
SHAPIRO: In the last few years, the president has shifted the balance of power toward the executive. This power struggle is central to nearly every major recent legal battle: torture, domestic spying, Guantanamo Bay, secrecy, whether the president can ignore laws, and whether he needs Congress's permission to go to war.
President Bush says he does not need that permission. In one of the Republican primary debates, McCain said he would consult Congress unless there's an imminent threat.
Senator JOHN MCCAIN (Republican, Arizona; Presidential Candidate): If the situation is that it requires immediate action to ensure the security of the United States of America, that's what you take your oath to do when you're inaugurated as president of the United States.
If it's a long series of build-ups where the threat becomes greater and greater, of course you want to go to Congress.
SHAPIRO: Obama has taken roughly the same position. McCain legal advisor and former Solicitor General Ted Olsen says McCain's background as a senator accounts for the difference between McCain and President Bush on this point.
Mr. TED OLSEN (Former Solicitor General): I think he feels strongly about the power and prerogatives of the legislature. That's part of his DNA by this period of time. That was not true with respect to President Bush.
SHAPIRO: Obama is also a senator and he taught constitutional law at the University of Chicago, so he has studied separation of powers in depth.
Obama presents himself as an antidote to the overreaching of the Bush administration. For example, in an interview on Saturday, Obama criticized Chief Justice John Roberts this way.
Senator BARACK OBAMA (Democrat, Illinois; Presidential Candidate): I think that he has been a little bit too willing and eager to give an administration, whether it's mine or George Bush's, more power than I think the Constitution originally intended.
SHAPIRO: McCain has said he would appoint judges who are similar to Roberts. Any candidate can renege on any campaign promise once he's elected president, and University of San Diego law professor Saikrishna Prakash says that's especially tempting when it comes to promises to relinquish power.
Professor SAIKRISHNA PRAKASH (University of San Diego): I imagine there'll be the sort of changes in position, at least to some extent, on the part of both candidates once they actually become president.
SHAPIRO: After all, presidents tend to think of themselves as using power only for good. McCain adviser Ted Olsen agrees.
Mr. OLSEN: They feel not only must they exercise the powers of the executive under the Constitution, but they must protect the powers of the presidency for their successors.
SHAPIRO: Obama legal adviser and Harvard Law professor Laurence Tribe says that's not how Obama sees it.
Professor LAURENCE TRIBE (Harvard University Law School): He believes that it is not really in the interest of a president who wants to serve the nation to take the law into his own hands and shred it when it's convenient.
SHAPIRO: Both McCain and Obama have generally distanced themselves from President Bush on executive power. For example, Mr. Bush frequently attaches signing statements to laws, asserting the right to ignore parts of a law that he disagrees with. McCain says he would never do that. Obama says he would not abuse signing statements.
On torture, President Bush says he can authorize a harsh interrogation technique even if Congress has outlawed it. McCain and Obama both say if Congress forbids it, they won't do it.
So why is the executive authority gadfly, Bruce Fein, disappointed in both these men?
Mr. FEIN: Okay, maybe when you're the president you don't abuse the power, but you have told every other president who succeeds you, so what? You won't have to face punishment. We need a deterrent effect out there, not because we want to be vindictive, but because we care about the Constitution.
SHAPIRO: Fein is talking about taking legal action against President Bush and Vice President Cheney, which neither candidate has shown any interest in doing.
Ari Shapiro, NPR News, Washington.
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