There seems to be some confusion on what executive orders ARE. Greenwald is a constitutional scholar and I'm sure he'll correct me if I'm wrong, but an EO is NOT a law. It is a command, issued by the President, to some or all of the members of the executive branch, who all work for him, after all. It can be something like "All federal prosecutors should go prosecute medical marijuana users and stop wasting time on counterfeiters." But the president is expected to cite the law (written by Congress) that justifies an executive order. It can't, in principle, contravene the law. None of this is mentioned in the Constitution, as far as I know. It developed by precedent.

Properly used, an EO is nothing more or less than instructions from a boss to all of his underlings, and the Executive Branch is HUGE. FBI, CIA, Dept. of Energy, etc. All of them work directly for the president. So you can see that there's a lot of gray area where law and instructions may differ slightly or largely.

But EOs are abused all the time. The first big case of this I know of was Truman trying to use an EO to nationalize the steel industry; the Supreme Court rejected this.

MY OPINION is that Obama should use Bush's assumed authority to invalidate the unconstitutional EOs (an EO can cancel an EO), and then seek congressional clarification (if not Constitutional Amending) to prevent further abuses by limiting the President's authority in this regard. I think that's a long shot, though.

Timothy, you're absolutely right. What I was describing was (arguably) a normal and appropriate Executive Order (even though the example I gave was one I would personally disagree with). No one denies, well, maybe John Yoo.. but no one sensible denies that EOs have been VASTLY misused to create all sorts of quasi-legal and illegal behavior. And that hardly started with Bush, to be fair (you could argue that Bush perfected the practice).

It gets so complicated that I struggle to understand it all. For example, the National Science Foundation is headed by people appointed by the President. They're confirmed by Congress, but serve the Executive Branch. So if the president issues an EO that forbids them to fund any research involving stem cells, is that an appropriate act or an improper appropriation of Congressional power?

In a sense, the problem is that the President of the United States also becomes the CEO of a gigantic corporation: The Federal Executive Branch. The Constitution does give the President control over this monstrosity, the Founders probably never imagined it could grow so large or take on so many roles. So right away, there's a lot of room for abuse of EOs. By issuing an EO to the FDA, he can control medical laws. Via the ATF and FBI, gun laws. Via the DEA, drug laws. Via USAID, foreign policy. And on and on and on. It's a LOT to ponder reigning in.

We know there are going to be major wars -- not with Republicans, but among Democrats, and especially the party's leaders -- over things like closing Guantanamo, imposing an absolute ban on torture, restoring habeas corpus, withdrawing from Iraq, reducing executive secrecy and increasing transparency, imposing mild limits and oversight on the surveillance state, returning the Congress to its proper role, and especially investigating prior crimes of high government officials.

Can you clarify why you included the word "mild" here? Do you mean that even in your most optimistic case, you only predict that Congress will be willing to slightly roll back surveillance, or do you mean that, in your opinion, only a mild rollback is necessary? I suspect it's the former, but the use of that adjective seemed out of character with the rest of the paragraph. A great article, though.