Executive Power in the Bush Administration: Constitutional Debate and Historical Conflict

This work investigates President Bush's use of presidential power in the War on Terror. It is particularly focused on two related criticisms of the President: that he violated the law or the Constitution in pursuing a number of unilateral actions, and that he exceeded past presidential precedent in those actions. Are these criticisms valid? To answer this question, this work examines the debates at the Constitutional Convention in an attempt to understand how the framers of the Constitution moved from the government under the Articles of Confederation which lacked an executive, to a Constitution with a single executive holding a number of substantial powers. It then studies presidential history as it relates to the two most controversial policies of the War on Terror: the NSA warrantless wiretapping program, and the capture, detention, trial and treatment of terrorists. Bush's policies raise important questions about the nature of the American constitutional system and democratic theory. This work approaches these issues by asking if the American system of government or constitutional separation of power changed in some fundamental way from the founding era to the present day. The evidence suggests that the separation of powers has not changed in a fundamental way, and that the American founders, especially Madison and Hamilton, would recognize the contemporary debate over presidential power as a continuation of one they began. However, although it can be argued that President Bush's actions fit broadly within constitutional design and historical practice, this does not mean his administration was without fault. Perhaps the most important shortcoming of his III administration can be described as a failure of leadership. A critical characteristic of presidential leadership is a willingness to make public arguments for one's policies and actions – to educate and convince the public. Bush's failure to do so ultimately hurt his presidency.

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