The Law: The Impact of Antiterrorism Policies on Separation of Powers: Assessing John Ashcroft's Role

By Baker, Nancy V. | Presidential Studies Quarterly, December 2002 | Go to article overview

The Law: The Impact of Antiterrorism Policies on Separation of Powers: Assessing John Ashcroft's Role


Baker, Nancy V., Presidential Studies Quarterly


One predictable outcome of the tragic events of September 11, 2001, has been the expansion of presidential power. Political scientists have long noted how national crises serve to centralize power in the White House, and this moment in the nation's history is no different. From the start, the administration of George W. Bush sought to "restore" presidential prerogatives that it believed had been eroded during the Reagan, George H. W. Bush, and Clinton administrations, particularly in relations with Congress (Blum 2002; Milbank 2001). Success in this regard had been unlikely, given the contested nature of the 2000 election and his predecessor's inability to successfully assert privilege claims. The tragedy of September 11, however, provided both the rationale and public support needed to support assertions of broad unilateral authority. As Mayer and Price (2002, 380) note, "Presidential power turns not just on the executive's persuasive capacities but on the constitutional and statutory sources of unilateral authority on which any president might draw." In asserting both of these sources of unilateral authority, U.S. Attorney General John Ashcroft has been key in crafting and promoting the administration's response in a way that enhances the president's domestic power. Many of Ashcroft's high-profile actions--such as the secret detention of foreign nationals following the terrorist attacks (Oliphant 2001; Goldstein 2001), the new rule permitting eavesdropping of conversations between attorneys and certain clients in federal detention (Bureau of Prisons 2001), and his support of military tribunals (Resnick 2002; Blum 2001)--have garnered much attention for their potential impact on civil liberties. Less attention has been paid to the potential impact of these and other actions on the constitutional system of divided and overlapping powers. This study will offer an early examination of the administration's domestic response to the terrorist threat, specifically focusing on the actions of the U.S. attorney general, to seek to clarify what impact the post-9/11 antiterrorism actions have had on the separation of powers.

Theory of Divided Powers

Many U.S. citizens consider it axiomatic that divided power is the bulwark of American liberty. "That all lawful power derives from the people and must be held in check to preserve their freedom is the oldest and most central tenet of American constitutionalism," according to constitutional scholar Laurence Tribe (2000, 6). Power is divided both horizontally between branches and vertically between levels. But what does a system of divided powers require in the current context of a war against a nonstate enemy? For all of their references to tyranny, the Constitution's framers did not want weak and ineffectual government. They saw a division of power not simply as a check on its arbitrary and abusive exercise but as a source of greater government efficiency (Fisher 1997; Gwyn 1964). However, this did not mean a system of strict functional segregation and independence. Instead, the system they adopted institutionalizes the interdependence of the branches and levels of government, with powers shared more than separated (Tribe 2000; Fisher 1997; Gwyn 1989).

The doctrine of separation of powers has become particularly salient since September 11, 2001. Both Congress and the president have made reference to the doctrine, either directly or indirectly. For example, Democratic Senator Patrick Leahy, chair of the Judiciary Committee, described the administration's plan to monitor some attorney-client conversations as "what appears to be an executive effort to exercise new powers without judicial scrutiny or statutory authorization" (Reuters 2001b). The executive branch, for its part, has characterized certain judicial and congressional actions as assaults on its core executive powers (see, for example, Bush 2001 a).

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Law: The Impact of Antiterrorism Policies on Separation of Powers: Assessing John Ashcroft's Role
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.