A Lawless Presidency

Bush fought for unprecedented expansion of presidential power – and failed
By Gabriella Anderson ’12 and Elise Liu ‘11


Executive fiat. Secret orders. Martial law. These are the trademarks of authoritarian regimes, and yet they also rank among powers presumed by the Bush administration in the past eight years. Begun in the wake of Sept. 11, 2001, George W. Bush’s unprecedented expansion of executive power sought to permanently redefine the role of the presidency. But did it succeed? The founding fathers designed the executive branch to be flexible in power, peaking in times of national crisis, and virtually every aggrandizement of presidential power by the Bush administration originated as an outgrowth of the War on Terrorism.  When Bush crossed the boundaries of constitutional law, however, the backlash against him left the executive branch functionally weaker than when he entered it.
Answering Terrorism, Asserting Power
As commander in chief, the executive will always command the most power, and fall under the least scrutiny, in times of national crisis. The Bush administration packaged its counterterrorism campaign as a war, arrogating wide surveillance and civil rights concessions under this precedent. But is it fair to think of the “war on terrorism” as a war at all? In an interview with the HPR, Gene Healy, vice president at the Cato Institute and author of The Cult of the Presidency, noted that it is precisely because that question is so difficult to answer that those concessions are so disturbing. “This war is not going to end in a few years with a peace treaty in Paris and a ticker-tape parade,” he quipped. This particular crisis, and, by extension, the new presidential powers that grew out of it, will survive “as long as there are terrorists who threaten America.”
Those powers include, but are not limited to, warrantless wiretapping in violation of the Foreign Information Surveillance Act of 2006, the detainment of alleged enemy combatants in violation of habeas corpus, and the reclassification and use of illegal interrogation methods. Even aside from infringing on the fourth, fifth, and sixth amendments, these transgressions collectively violated both substantive and procedural rule of law. Center for American Progress senior fellow Mark Agrast told the HPR “We’ve seen the perversion of the law itself,” especially in signing statements that seize upon “entirely fictional legal justifications” to undermine the will of the legislative branch.
Blank Checks, Skewed Balances
Often unnoticed by voters and media alike, these signing statements have nonetheless been one of the Bush administration’s most significant vehicles in expanding executive power. Previously mere clarifications of the executive’s understanding of the law, they grew to unilaterally redefine statutes in those cases when a veto would be ineffective; inevitably, cases in which congressional support was strong, bipartisan, and designed to check executive power. One such case, Healy pointed out, was the Detainee Treatment Act of 2005 proposed by Sen. John McCain (R-Ariz.) which explicitly forbade “cruel, inhuman, or degrading treatment” of all prisoners. In an act of executive nullification, President Bush “signed the law, and essentially announced that he wouldn’t follow it,” Healy explained.
Even short-term executive expansion would not have occurred without complicity from the other two branches, however, and a number of critics contend that Bush only succeeded because neither branch was willing to exercise its oversight powers in a time of war. In the legislative branch, an increasingly partisan Congress may have neglected institutional checks in favor of party loyalty. “During the Vietnam war, institutional consciousness transcended party identification,” Agrast pointed out, “but that was lost in the Gingrich revolution.”
Furthermore, critics contend that the Bush administration used appointments to both install apologists in the Justice department and to neutralize the constitutional check of the Supreme Court. Both Samuel Alito and John Roberts were junior officials in the Reagan Administration; as Agrast argued, they had been working toward “what they saw as a restoration of executive power lost in the intervening decades.” Indeed, both Bush appointees joined the “solid four-vote minority that [strove to] sustain everything his administration has done.”
The backlash and the legacy
Just as President Bush and his staff fell short of building majority support on the bench, they likewise did not foresee the backlash against their actions. “There’s no question that they attempted to ’rehabilitate’ executive power, as they called it,” Brookings scholar Benjamin Wittes told the HPR, “but whether they succeeded is a different matter.” Ironically, the detainment of enemy combatants in Guantanamo Bay is the clearest example of their failure: while the administrations of George H.W. Bush and Bill Clinton used Guantanamo to quietly house Haitian and Cuban refugees respectively, “only [George W. Bush] has made it impossible for any future administration to do the same.”
Instead, by directly and aggressively challenging its constitutional constraints, President Bush invited fresh scrutiny from both an increasingly active Supreme Court and a Democratic Congress that his controversies helped elect. This paradoxical result is especially evident in a string of critical opinions beginning with Hamdi v. Rumsfeld in which the judiciary, not the executive, “maximized its authority, since it has gained jurisdiction over military affairs,” argued Wittes, the author of Law and the Long War: The Future of Justice in the Age of Terror.
As the Bush administration comes to a close, leaders in Washington have expressed their hope that the next executive will bring a very different governing philosophy to the division of powers. In their respective campaigns both presidential candidates criticized the use of signing statements to overrule legislation. On the part of Congress, the introduction of the Executive Order Integrity Act of 2008 by Senate Democrats is evidence of the growing consensus that Congress will apply far tighter restraints upon the White House than it did in the past eight years.
In spite of these restrictions, it is possible that the president’s substantive power will not decline.  Healy pointed out, “there will still be an expectation that the president can provide absolute protection from all matter of harm.” Yet the public’s faith in the executive should not, after the past eight years, overcome the legislative and judicial branches’ new suspicion of its excessive power. Although future presidents will have the political clout to influence legislation, establish new programs, and make substantive decisions within their constitutional powers, they will also face the higher standard of scrutiny left to them by the Bush administration.
They will also have reason to pursue their agenda through constitutional means. After all, when President Bush strained his crisis mandate too far he undermined not only the long term power of the executive, but also his agenda; attempts to expand his statutory powers led to their restriction, and with an approval rating hovering around 25 percent, he has lacked the political capital necessary to govern. A consensus has developed between voters and elected officials alike: a respect for the separation of powers, which is poised to constrain executive encroachment for years to come.