Constraining Executive Power: George W. Bush and the Constitution

By Pfiffner, James P. | Presidential Studies Quarterly, March 2008 | Go to article overview

Constraining Executive Power: George W. Bush and the Constitution


Pfiffner, James P., Presidential Studies Quarterly


The Framers of the Constitution were influenced by their English constitutional heritage with respect to individual rights and drew heavily upon British precedents. With respect to governmental structure, however, they rejected British precedent and created a separation of powers system based on a written constitution. The principles upon which they designed the Constitution included explicit limits on the powers of government and a separation of powers structure intended to prevent the accumulation of power in any one branch of government.

The system set up by the Framers has worked reasonably well for more than two centuries of political experience (with the exception of the Civil War). In the nineteenth century, the Congress tended to dominate policy making, except in cases of war. In the twentieth century, however, the presidency accumulated sufficient power to play a dominating role in both domestic and foreign policy. One of the important constitutional confrontations between the presidency and Congress over a range of issues occurred during the "imperial" presidencies of Lyndon Johnson and Richard Nixon. In reaction to the aggrandizement of power in the presidency, Congress asserted its own constitutional authority by enacting a number of laws intended to constrain presidential power.

It is this congressional reassertion of constitutional authority in the 1970s that Vice President Dick Cheney and President George W. Bush intended to reverse when they came to power in 2001. The administration, particularly Vice President Cheney, who had served as chief of staff to President Gerald Ford, felt that Congress overreacted to Vietnam and Watergate and hobbled presidential power in unconstitutional ways. He said,

   The feeling I had [during the Ford years], and I think it's been
   borne out by history, that in the aftermath, especially of Vietnam
   and Watergate, that the balance shifted, if you will, that, in
   fact, the presidency was weakened, that there were congressional
   efforts to rein in and to place limits on presidential authority.
   (Walsh 2006)

A White House aide later articulated an attitude seemingly shared by many at the top levels of the Bush administration:

   The powers of the presidency have been eroded and usurped to the
   breaking point. We are engaged in a new kind of war that cannot be
   fought by old methods. It can only be directed by a strong
   executive who alone is not subject to the conflicting pressures
   that legislators or judges face. The public understands and
   supports that unpleasant reality, whatever the media and
   intellectuals say. (Hoagland 2006) (1)

Those "conflicting pressures," of course, are the whole point of the separation of powers system. The atrocities of 9/11 gave President Bush the opportunity to achieve much of the expansion of executive power that he had sought since he became president. This article will take up four cases of extraordinary claims that President George W. Bush has made to executive authority under the Constitution: suspending the Geneva Conventions, denying habeas corpus appeals, National Security Agency (NSA) surveillance, and signing statements.

Suspending the Geneva Conventions and Torture

George W. Bush has been the only U.S. president to defend publicly the right of U.S. personnel to torture detainees. Probably the president did not intend for U.S. personnel to commit the egregious acts of torture that resulted in the death of many detainees. He did argue, however, that U.S. personnel needed to use aggressive techniques when interrogating prisoners captured in the war on terror. Despite declarations that "we do not torture," the aggressive interrogation procedures that were used by U.S. personnel (military, CIA, and contractors) in Guantanamo, Afghanistan, and Abu Ghraib are considered by most of the world to be torture. The Bush administration, in determining the legal basis of interrogation policy, used a narrow and technical definition of "torture" set forth in an Office of Legal Counsel memorandum of August 2002. …

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