68 Pages Posted: 28 Mar 2007
The Bush administration has asserted a stunning broad vision of executive authority under the Constitution. The expansive scope of Article II power extends to matters both foreign and domestic. It includes, for example, claims of inherent authority in connection with the "war on terror" as well as administrative agency preemption of state law. This Article does not address the legality of any of the Bush administration's claims of executive power. It operates on the assumption that they are at the constitutional envelope. Its focus is on the appropriate role of courts in response to such envelope-pushing constitutional claims.
The Article describes a structural equilibrium approach for courts to follow. Under this approach, the judiciary should respond to a constitutional change by preserving the foundational principles on which the Constitution is based. As the Article describes, the three foundational principles are: (1) a commitment to separation of powers both vertically and horizontally; (2) the maintenance of a role for the people in governing; and (3) the preservation of government functionality.
In order to apply the theory of structural equilibrium, the Article further describes the salient features of the Bush vision of Article II executive power. Using a number of contemporary examples, the Article outlines a core feature of the Bush vision and three sub-attributes. The core feature is a commitment to the unilateral exercise of power. The three sub-attributes are: (1) power is often exercised in secret; (2) intolerance to criticism; and (3) retribution against critics.
The Article then applies the structural equilibrium approach to the particular constitutional vision of the Bush administration. It does so by considering the October 2005 Term of the United States Supreme Court. It does not purport that the Court actually used the structural equilibrium approach. Rather, it considers the Term as if the Court had done so. Along the way, it discusses a number of recent high profile decisions, including those involving military commissions, campaign finance reform laws, assisted suicide, and partisan redistricting. It concludes that the October 2005 would have looked different in important respects had the Court used the structural equilibrium approach as part of its decision-making calculus.
JEL Classification: K19
Suggested Citation: Suggested Citation
Allen, Michael Patrick, George W. Bush and the Nature of Executive Authority: The Role of Courts in a Time of Constitutional Change. Brooklyn Law Review, Vol. 72, p. 873, 2007. Available at SSRN: https://ssrn.com/abstract=975543