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What's a President to Do? Interpreting the Constitution in the Wake of Bush Administration Abuses


Dawn E. Johnsen


Indiana University Maurer School of Law


Boston University Law Review, Vol. 88, No. 2, 2008
Indiana Legal Studies Research Paper No. 119

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.

Number of Pages in PDF File: 27

Keywords: executive power, bush, torture, presidential power, separation of powers, constitutional interpretation, nonjudicial interpretation, departmentalism, presidential noncompliance, presidential nonenforcement

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Date posted: January 10, 2009 ; Last revised: July 1, 2013

Suggested Citation

Johnsen, Dawn E., What's a President to Do? Interpreting the Constitution in the Wake of Bush Administration Abuses. Boston University Law Review, Vol. 88, No. 2, 2008; Indiana Legal Studies Research Paper No. 119. Available at SSRN: http://ssrn.com/abstract=1325502

Contact Information

Dawn Elizabeth Johnsen (Contact Author)
Indiana University Maurer School of Law ( email )
211 S. Indiana Avenue
Bloomington, IN 47405
United States
812-855-3942 (Phone)
812-855-0555 (Fax)
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