by James P. Pfiffner. Washington: Brookings Institution Press, 2008. 299pp. Cloth $28.95. ISBN: 9780815770442.
Reviewed by Graham G. Dodds, Department of Political Science, Concordia University (Montreal, Canada). Email: gdodds [at] alcor.concordia.ca.
As the presidency of George W. Bush draws to a close, academics are beginning to debate Bush’s place in history, his impact on the institution of the presidency, and his overall legacy. Of course, the Bush presidency has been controversial not only politically, but also constitutionally. In Power Play, James P. Pfiffner examines Bush’s impact on America’s constitutional order. Pfiffner (University Professor of Public Policy at George Mason University and the author or editor of ten books on the presidency and American government) argues that Bush has not just pushed the limits of executive power but has transgressed them, threatening the very foundations of American government. For Pfiffner, Bush’s actions have challenged and undermined fundamental rights, the balance among the three branches, the possibility of republican government, and even the rule of law.
After a brief overview and introduction in the first chapter, the book proceeds in two parts. Chapters 2-4 are devoted to the theoretical, constitutional, and historical background of executive power, while Chapters 5-8 look at four cases of Bush overreaching: denying habeas corpus, permitting harsh interrogation techniques, engaging in warrantless domestic spying, and using signing statements to alter legislation – or as Pfiffner entitles the chapters – the powers to imprison, to torture, to surveil, and to the ignore the law.
In Chapter Two, Pfiffner considers “The Nature of Executive Power,” particularly how it has been legitimated and constrained. He discusses Machiavelli, Hobbes, Locke, and Montesquieu as sources of the framers’ ideas about executive power. Political theorists may well want more than the thumbnail sketches that Pfiffner offers, but this chapter serves to ground controversies about executive power in western political thought. In Chapter Three, Pfiffner moves from theory to constitutionalism and chronicles “the historical development of individual rights and the rise of Parliament in England” (p.32). The discussion here ventures fairly far afield, as Pfiffner goes all the way back to William the Conqueror, King John, and the 1628 Petition of Right. But the main point of this background is to set forth the various ways that Englishmen wrested power from kings over the years (p.54).
Pfiffner turns to the US Constitution in Chapter Four. He claims that the American founders sought to keep many of the checks on monarchical power that their English forebears had won, so they were careful to limit and check executive authority. Pfiffner mentions the experience of the colonial era and the Articles of Confederation, then recounts some of the history of the constitutional [*823] convention and the framers’ treatment of the presidency and war power. He maintains that the framers had a “distrust” of executive power (p.61) and therefore produced a document the “plain words” and history of which supposedly refute many of the Bush Administration’s claims (p.82).
With all of this background in place, Pfiffner then examines four actions in which the Bush Administration advanced radical claims about executive power. Chapter Five is devoted to Bush’s denial of the “Great Writ” of habeas corpus. Pfiffner traces the history of habeas from Stuart-era England through Lincoln and EX PARTE MILLIGAN to FDR and EX PARTE QUIRIN, then he briefly goes through the judiciary’s rejection of Bush’s actions in RASUL, HAMDI, and HAMDAN. Pfiffner also covers several less well known cases of individuals who were mistakenly imprisoned without legal recourse, as well as the Bush Administration’s policy of rendition, in which suspected terrorists are sent abroad to be tortured by foreign governments.
In Chapter Six, Pfiffner discusses the Bush Administration’s use of extreme interrogation techniques, including torture. He criticizes the legal memos written by John Yoo, David Addington, Alberto Gonzalez, and Jay Bybee that suspended the protections afforded by the Geneva Conventions and paved the way for torture, as well as an executive order that Bush issued in July, 2007 to assert his authority to interpret the application of the Geneva Conventions and to authorize harsh interrogation techniques, such as waterboarding. According to Pfiffner, “this was the first time in history that the decision to torture enemy prisoners was connected to and defended by the president” (129).
Chapter Seven examines Bush’s secret program of domestic spying, in apparent violation of the 1978 Foreign Intelligence Surveillance Act (FISA), which the NEW YORK TIMES revealed in late 2005, despite a Bush Administration request not to do so. Pfiffner presents and rebuts several different Administration arguments about Bush’s policy (p.174), arguing that even if it were necessary, Bush should have gone through Congress rather than unilaterally ignoring existing law.
Pfiffner discusses Bush’s use of signing statements in Chapter Eight. Signing statements accompany the president’s signature of legislation and can be use to interpret creatively or even undercut laws. For example, when Congress acted to ban torture by approving Senator John McCain’s amendment to the Detainee Treatment Act (DTA) of 2005, Bush sought to mitigate its restrictions through a singing statement that suggested the president would not be bound by the new law. Summarizing existing scholarship, Pfiffner notes that historically most signing statements were merely rhetorical, but this began to change under Ronald Reagan, when statements began regularly to make constitutional claims. The Bush Administration has openly tried systematically to use signing statements to carve out more power for the president. Bush has issued 159 signing statements, through which he recorded objections to 1,167 legal provisions (p.203). For Pfiffner, some of Bush’s signing statements amount to “threats to fail to execute the law faithfully” (p.227). As such, they “directly challenge the ability of Congress to constrain executive actions, the nature of [*824] the rule of law in the United States, and the meaning of the separation of powers system” (p.195).
Pfiffner thus covers a lot of ground in this book, from various background considerations about executive power to four cases of alleged overreaching. This is controversial stuff, and Pfiffner’s account invites a number of criticisms, most of which he seems to anticipate. For example, one might ask whether Pfiffner unfairly singles out Bush. After all, other presidents have engaged in some of these actions, too. Pfiffner concedes that during the twentieth century, most presidents have dominated Congress, but he claims that “this domination reached a peak under the presidency of George W. Bush” (p.57). For Pfiffner, Bush simply went much further than his predecessors.
Alternatively, one might charge that Pfiffner’s criticisms are unfairly partisan. But Pfiffner notes that many of the more damning criticisms of Bush’s actions have come from Republicans and even members of the Administration (p.185). Indeed, Attorney General John Ashcroft is presented as a critic of Administration policy in two of Pfiffner’s four cases (habeas and spying). Civil libertarians may scoff at the notion of the author of the Patriot Act being a hero, but Pfiffner’s presentation is fairly even handed.
A related criticism is that perhaps Pfiffner is just being too harsh, or that his charges are overblown or hyperbolic. And Bush does indeed come in for some damning criticism here. For example, Pfiffner claims that Bush has shown “contempt for the other branches of government” (p.244), “Bush claimed that the checks and balances in the Constitution did not bind him” (p.245), and Bush “claimed powers once asserted by kings” (p.2). According to Pfiffner, “He has expanded the constitutional authority of the president in extraordinary ways and has tried to undo constraints that the Constitution places on executive power” (p.229).
But Pfiffner seems to have defenses against the charge of hyperbole. First, he notes that most Americans think of their basic constitutional arrangements as being set in stone and safe, such that they tend not to notice the erosion of the rule of law (p.xi). In other words, maybe few citizens are up for the sort of eternal vigilance necessary to safeguard the system they take for granted, but constitutional transgressions must nevertheless be taken very seriously. Second, for Pfiffner, the real danger of Bush’s actions lies in their value as precedents. He says that “precedents make a difference” (p.242), so that Bush’s actions may serve as “loaded weapons” for future presidents to use (p.12). Indeed, Pfiffner twice quotes Madison in FEDERALIST No. 10: “Enlightened statesmen will not always be at the helm” (pp.127, 192). Therefore, Pfiffner says that Bush’s actions must be challenged and struck down: “If left to stand, these precedents may very well undermine the republican nature of American government” (p.57).
The question of the severity of Pfiffner’s charges may also turn on one’s view of exactly why Bush engaged in the actions that Pfiffner criticizes: did the president do it just for the sake of political expediency, to make what he regarded as good public policy, or to advance a particular conception about presidential power? The first possibility seems far-fetched, as none of these policies has been a political boon to Bush; indeed, [*825] they have contributed to his dramatic unpopularity. Pfiffner touches on the second possibility in admitting that the 9/11 attacks demanded a serious, thorough response and that some of Bush’s actions (excepting torture) might have been effective. He also concedes that Bush was sincere in his belief that he was acting in the nation’s best interests (p.174). As for the third possibility, Pfiffner maintains that the Bush Administration’s actions were part of a conscious, concerted effort to increase the power of the presidency. According to Pfiffner, Bush and Vice President Dick Cheney wanted to recapture presidential prerogatives that Congress had taken away, as they thought that the reaction to the “imperial presidency” after Watergate simply “went too far” (p.3). Insofar as Bush’s actions were part of an effort to advance this principled view of executive power, our assessment of them may turn on what we think about the status quo ante: were Congress’s actions after Nixon excessive or a legitimate reversion to the appropriate state of affairs?
Whether Bush’s actions amount merely to pushing the constitutional envelope or to destroying it altogether, there is the question of what could and should be done about it. And here Pfiffner seems equivocal. One obvious response is to look to the other two branches, and Pfiffner notes that Bush’s actions almost “invite an overreaction by Congress” (p.228), presumably of the sort that Bush and Cheney discern after Watergate. Yet Pfiffner also notes that Congress had been largely ineffective in rebutting Bush and has even acted to legitimate some of Bush’s audacious claims by passing legislation that has “given the patina of law to Bush’s actions” (p.127). Pfiffner seems mainly to want Bush just to admit that he has limits, as if this simple act of self-realization would be enough to safeguard the constitutional system. He says, “For the Constitution to endure, governmental officials must act with restraint and admit that they do not have exclusive power” (p.192). Ideally, the well-functioning of the American polity would be assured by more institutional means and need not rely upon an individual’s inclination to act with restraint, but a presidential concession of limits could be a good place to start.
In sum, POWER PLAY is an accessible account of some the ways in which the Bush Administration has advanced controversial claims about executive power and why their actions are constitutionally dangerous. The book should appeal to scholars of American politics, the presidency, and public law. It is suitable for both undergraduate and graduate students, as well as a general audience.
EX PARTE MILLIGAN, 71 U.S. 2 (1866).
EX PARTE QUIRIN, 317 U.S. 1 (1942).
RASUL v. BUSH, 542 U.S. 466 (2004).
HAMDI v. RUMSFELD, 542 U.S. 507 (2004).
HAMDAN v. RUMSFELD, 548 U.S. 557 (2006).
© Copyright 2008 by the author, Graham G. Dodds.