The Constitutional Legacy of George W. Bush

When the framers came to the Constitutional Convention in 1787, they brought with them a profound ambivalence toward executive power. On the one hand, they had fought a war to gain independence from England and were determined not to create a system of government that led to abuse by an overly ambitious executive. They knew that, throughout history, executives consistently sought more power, which often led to tyranny. On the other hand, their experience with the Articles of Confederation illustrated the difficulties arising from the lack of an energetic executive. In addition, they had a decade's experience with the weak executives created by the individual states, and they were well aware of the abuses of the state legislatures after the Revolution. Their solution to this dilemma was to create a separation of powers system in the Constitution that featured an executive independent of legislative control, with governmental authority shared among the three branches. They expected that Congress would be the driver of national policy and that the president would provide energy and accountability in the execution of public policy. During the nineteenth century, with a few exceptions, their expectations were fulfilled, with Congress dominating national policy making. In the twentieth century, however, the effect of two world wars, the Cold War, more sophisticated weaponry, and the speed of communications led to presidential domination of the use of force and military engagement. Despite the Constitution's designation of most war powers, other than commanding the armed forces, to Congress, presidents came to dominate the use of force. The atrocities of 9/11 intensified the tendency to centralize power in the presidency and created powerful incentives for presidents to take aggressive measures against potential terrorist threats in order to ensure that another terrorist attack did not occur on their watch. This article will examine the assertions of constitutional power by President George W. Bush and argue that he established significant precedents that have enlarged the range of future presidential discretion. The actions of President Barack Obama in national security have illustrated how important the Bush precedents were. As senator, Obama often criticized Bush on constitutional and policy grounds. But when he became president, although he curbed some of President Bush's excesses, he adopted similar policies and extended some of them regarding indefinite detention, electronic surveillance, and signing statements. Obama reversed Bush policies on the use of torture during interrogations, but Obama's executive orders could not bind future presidents. President Bush and Executive Power From the beginning of their terms of office President Bush and Vice President Cheney felt that, since the reassertion of congressional prerogatives in the 1970s, presidential power had been unduly constrained. As Vice President Cheney 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, 48). They determined to leave the office constitutionally stronger than when they came to office, and the atrocities of 9/11 gave them the opportunity to expand significantly executive power in the national security arena. Suspending the Geneva Conventions and Torture After the U.S. invasion of Afghanistan, several hundred men suspected of terrorism were turned over to U.S. troops (5% were captured by U.S. troops) and incarcerated at the U.S. base at Guantanamo Bay, Cuba (Denbeaux and Denbeaux 2005, 1-2). When ordinary interrogation did not produce the "actionable intelligence" that the administration expected, interrogators used brutal procedures to coerce information from them. …