27 Pages Posted: 10 Jan 2009 Last revised: 1 Jul 2013

Abstract

President George W. Bush and his executive branch lawyers have earned widespread criticism for extreme positions and practices regarding the scope of presidential authority. The war on terror that followed the September 11, 2001 terrorist attacks provided the context for their most controversial claims of unilateral authority: to override legal prohibitions on the use of torture and cruel, inhuman and degrading treatment; to hold "enemy combatants" indefinitely without access to counsel or any opportunity to challenge their detention; and to engage in domestic electronic surveillance without a court order. Our nation's welfare and integrity depend upon continued evaluation, response, and, when warranted, condemnation of these practices. Many commentators (including me) have proposed reforms and principles to guide future administrations and to encourage Congress and the courts to impose appropriate external checks. This Article, however, urges due care in the formulation of such critiques and reforms, especially regarding the Bush administration's efforts to advance its constitutional views. Critics should be precise with their objections and recommendations in order to avoid undermining legitimate authorities for future Presidents or otherwise disrupting the proper balance of governmental powers. The Bush administration's abuses - especially its claims of authority to refuse to comply with federal statutes - reinforce the need for articulated standards and effective safeguards to ensure lawful conduct. However, those abuses do not obviate the existence or desirability of legitimate presidential authority. Among the powers President Bush has placed at risk is the longstanding and necessary authority of Presidents, with the help of their executive branch lawyers, to interpret the Constitution in ways that go beyond judicial precedent and congressional determinations.