The Law Saving the Presidency from Lawyers

The second Bush presidency has made at least one major contribution to the study of the presidency: It has put the lie to the notion that constitutional powers and institutional relations are less than central to the contemporary presidency and to any methodology selected to study that institution. After all, the George W. Bush presidency's overarching goal and master plan, spanning the gamut of routine day-to-day activities, on the one hand, to the administration's most important policy goals, on the other, has been to define and redefine the president's constitutional powers consonant with its singularly expansive view of the office. The Bush administration's unceasing effort to recast Article II, including such activities as the prolific use of signing statements to rewrite legislation, expansive claims of executive privilege, unbounded declarations of secrecy spanning every manner of presidential (and vice presidential) action, warrantless wiretapping, war powers claims, the detention of suspects related to external threats, among other actions, all ride on express constitutional claims made by the administration. While the substance of these claims is, at the least, open to dispute, George W. Bush is no Neustadtian president seeking to buttress puny formal powers by marshaling his persuasion skills to strike bargains with Congress or the bureaucracy. Baby, the new institutionalism is back, and lawyers are leading the charge. The central role played by lawyers in the institution of the presidency is nothing new, nor is it unique to the Bush administration or to governance itself. But given that the Bush administration is seeking a new class of constitutional (as distinct from political) powers, it needs more than a political justification. It needs to be able to make a plausible structural argument. In the case of his prosecution of the war on terrorism, for example, Bush argues partly from necessity. But he also argues vehemently that his reading of his Article II commander-in-chief powers not only allows him to take any action he deems necessary for the security of the country, but also that Congress may not legislate to circumvent those powers as he defines them and that the courts may not adjudicate any challenge to them (Spitzer 2006). When Bush's claims to constitutional powers are married with another trait--adherence to the constitutional doctrine of "original intent"--then the role of lawyers becomes not only important but vital. It is, after all, central to modern conservatism that contemporary governmental actions should conform to an originalist view of the Constitution; that is, the modern exercise of powers should hew closely to a narrow or strict interpretation of the Constitution, and the founders' intent behind it, as it was contemplated in 1787. The opposing "living Constitution" perspective, expressing the view that the Constitution should be interpreted to conform to contemporary problems, is anathema. Yet to return to Bush's expansive view of Article II commander-in-chief powers, it certainly seems at first glance to conform more closely to a living Constitution view, not an originalist view. The solution to this conundrum--that is, to behave according to the tenets of a living Constitutionalist while claiming originalist pedigree is to construct or stitch together a constitutional justification that has the appropriate provenance. The ideal facilitators for such an enterprise are lawyers; the ideal venue for such an activity is law reviews. My argument, in a nutshell, is that legal training and law reviews are a breeding ground for wayward constitutional theorizing; in the case of the presidency, legal academic analysis has provided critical scholarly legitimacy for at least some of the ideas that have flowered in the current Bush administration (although this phenomenon is limited neither to the presidency nor to the current administration). Legal training, including the adversarial process, advocacy, and client loyalty, are well suited to the American system of justice, in which opposing, one-sided arguments collide to produce a just outcome. …