A Sword and a Shield: The Uses of Law in the Bush Administration

THE PRESIDENCY OF GEORGE W. BUSH: A FIRST HISTORICAL ASSESSMENT, Julian Zelizer, ed., Princeton University Press, 2010

37 Pages Posted: 24 Sep 2009 Last revised: 6 Oct 2010

Mary L. Dudziak

Emory University School of Law

Date Written: September 23, 2009

Abstract

The Bush administration has been criticized for departures from the rule of law, but within the administration law was not ignored. Instead it was seen variously as a tool and as a potential threat to the operation of the executive branch. Two narratives compete for attention. In an era when the legality of torture was openly debated, the deployment of law in wartime seemed the most immediate issue. At the same time, however, a decades-long conservative movement to change American law was both significantly furthered and complicated, as Supreme Court appointments moved the Court to the right, but the lack of a common jurisprudence hampered the consolidation of a new conservative constitutional vision. More conservative courts might seem a safe haven for the president, less likely to challenge executive branch actions, but the Bush administration had a complicated relationship with courts. The administration sought out the courts to further aspects of a social policy agenda, such as restricting abortion rights and gun control. But when it came to challenges to the executive branch itself, the Administration used creative means to avoid court jurisdiction, including constitutional theories about executive power. Law was both a sword and a shield: it was a tool used to further some conservative objectives, and it was a shield intended to protect executive autonomy.

Suggested Citation

Dudziak, Mary L., A Sword and a Shield: The Uses of Law in the Bush Administration (September 23, 2009). THE PRESIDENCY OF GEORGE W. BUSH: A FIRST HISTORICAL ASSESSMENT, Julian Zelizer, ed., Princeton University Press, 2010. Available at SSRN: https://ssrn.com/abstract=1477506

Mary L. Dudziak (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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