With the Democratic takeover of the House, and the continuing possibility of a Democratic takeover of the Senate, we're obviously going to see a lot more friction between Congress and the President in the next two years. Am I right in thinking that this is likely to lead to a series of new judicial precedents on the scope of executive power?

  The GOP Congress was eager to get along with the President, but the Democratic House (and possibly Senate) obviously won't be. For example, I assume the House will have lots of hearings and demand lots of documents from the Executive; when this happens, we can be pretty confident that the Executive will assert broad claims of executive privilege. These claims presumably will be resolved by the courts, and neither side is likely to back down. Both will want to litigate the issue to the fullest.

  I would guess, on the whole, that this isn't good news for proponents of strong executive power. I think it's fair to say that the Executive Branch's credibility on executive power claims is relatively low these days among the folks with Article III appointments. For better or worse, this isn't the most friendly judicial environment in which to push a strong Article II. Of course, a single retirement might alter the balance at the Supreme Court; the Hamdan Five might become four. However, the confirmation process to fill an open seat would need to go through the new Senate first.