Bush pushed the limits of presidential power

Although the Supreme Court dealt the Bush administration setbacks in cases involving detainees and military commissions at the Guantánamo Bay prison camp, the high court has never directly ruled on the constitutionality of the administration's claims of unilateral commander in chief power. The terror cases were all decided on lesser legal arguments.

That means Bush's arguments are still available for future presidents. But the Bush experience could cut either way, analysts say. "If you think about lawyers in a future administration arguing about whether a similar claim [of executive power] is right or wrong, those who argue that it is wrong or at least unwise will be strengthened in their arguments [by Bush's record,]" Berenson says.

"I wouldn't say the Bush administration has done more harm than good to executive authority, but they have done less good then they hoped to," he says.

Will other presidents expand power?

Pfiffner sees a looming threat from the Bush example. "In general, executive power tends to ratchet up; it is less like a pendulum and more like a ratchet," he says. "Bush created precedents of constitutional claims to executive power that other presidents have not. So in that sense he has made the institution more powerful and future presidents can point to that and say Bush did it."

Ironically, future terror attacks may play the most decisive role in shaping how history views the Bush presidency.

"If we are attacked again and there is major loss of life, I think Bush's stock will soar and people will conclude that a lot of what he was doing was absolutely essential," says Professor Calabresi.

But he adds: "If there are no additional attacks and the whole terrorism threat seems to have fizzled out then I think people will be skeptical of what Bush did in fighting the war on terror and think it was unnecessary."

Several analysts echo an assessment made by former Bush legal adviser Jack Goldsmith in his book "The Terror Presidency." Mr. Goldsmith, now a law professor at Harvard, has said the administration could have gotten most of what it wanted had it reached out to Congress instead of trying to act unilaterally.

In his book, he writes: "When an administration makes little attempt to work with the other institutions of our government and makes it a public priority to emphasize that its aim is to expand its power, Congress, the courts, and the public listen carefully, and worry."

Professor Goldsmith says Bush failed to follow the lessons of Lincoln and Roosevelt, that greatness resides not in the ability to command but in the responsibility to persuade and inspire.

"[Bush] has been almost entirely inattentive to the soft factors of legitimation – consultation, deliberation, the appearance of deference, and credible expressions of public concern for constitutional and international values – in his dealings with Congress, the courts, and allies," Goldsmith writes.

In these failings are important lessons.

"I think the enduring legacy of the Bush administration in the separation of powers realm will be a renewed appreciation of the fact that whatever the limits of unilateral executive authority may be, the executive is strongest when it is acting in partnership with the legislative branch," former White House associate counsel Berenson says. "That is the deepest, ultimate lesson from the administration."

•Thursday: Bush's foreign-policy record.

Previous

1 | 2 | 3 | 4