an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Bush Presidency and Theories of Constitutional Change (Part II)
In my earlier post on this subject, I posited that the Bush presidency poses a challenge for theories of constitutional change. How should that change be met? After the jump, I provide a sample of the analysis in my article of the title above, just posted on SSRN. The analysis does differ from the kind scholars have absorbed from the theories put forward by Bruce Ackerman and Keith Whittington. It does not focus on constitutional moments or constructions.
Here let me address informally what sort of conceptual moves are necessary before scholars can come to grips with change in the Bush presidency. First, we need to drop the assumption, often more implicit than explicit, that informal constitutional change outside Article V and judicial doctrine is a matter of “adapting” the “unwritten” Constitution to new circumstances. Instead, we need to see the terrain of informal change as involving a tension between the use of the text by officials to leverage the creation of new powers and the constraints, however abstract, that the text places on official action. This tension is mediated by institutions who are chiefly interested in pursuing policy objectives seen as important rather than paying close attention to the rules in the text.
Next, we should not understand informal change in quasi-legalistic terms. By this I mean we should not search for a test that will separate informal changes that are the equivalent of the rules in the text of the Constitution from those that are not. Consider that if such a test were already accepted, we would have an accepted set of constitutional “conventions” in the manner of legal systems that do not have a supreme fundamental law. Or we might have a well-defined doctrine of “extra-constitutional” institutions and practices. But we do not. This shows we take Article V and VI seriously.
Informal change can be approached by studying the development of state institutions over time. This provides a more secure understanding of when change occurs than quasi-legal tests. It also points up that informal change can occur internally, as a result of the logic of the constitutional system itself, rather than be imposed externally by, say, a social movement. This sort of view also allows for the possibility that informal change may be deeply problematic. Another implicit assumption concerning informal or “unwritten” change is that adapting the Constitution to new circumstances does not jeopardize the system as a whole or raise fundamental questions as to its adequacy. But paying close attention to how institutions operate, especially in times of crisis, allows us to pose such questions within the framework of the theory I offer.
Notice how abuses of presidential power keep happening? Scholars differ on where to start the chain, but here are a few examples: the Bay of Pigs, the expansion of U.S. involvement in Vietnam, Watergate, intelligence agency abuses, Iran-contra, and the post-9/11 presidency. Are there not similarities here, both circumstantial and institutional? All involve foreign affairs, war, and the presidency. The uncertain constitutional status of the intelligence agencies, especially the CIA, are a dark thread throughout. But what are the connections and what do they show about the ability of the constitutional system to adapt to new circumstances? These are questions I will be exploring in future articles. With this theoretical background in mind, I will argue that the Bush administration’s changes to the constitutional order can be explained in the following way. After the 9/11 attacks, President Bush cleared the ground for significant informal constitutional change by using his Commander in Chief power to aggressively define the reality in which all branches of government would henceforth operate. That reality was a state of war equivalent to World War II, the last total war fought by the U.S. The informal changes were often secret in that the public (and other administration officials) did not know they were taking place. They were further enabled by the OVP going operational in the manner of a cabinet department. Lawyers in the White House, OVP, and the Department of Justice used their positional advantages to immunize executive officials from legal liability by adopting the theory of “preclusive” Commander in Chief powers. Finally, as a related point, I suggest executive officials were driven primarily by a fear of accountability generated by the internal logic of the constitutional system rather than from the more commonly posited desire to aggrandize their own power. The discussion that follows traces each of these points.
A useful quality of an institutional approach to constitutional change is that it highlights the latent power contained within roles created by the text. History suggested that after a Pearl Harbor-like attack, vast power to shape the nation’s response would flow to President Bush as Commander in Chief. Arguably the single most important constitutional action in the aftermath of the shocking and disorienting events of 9/11 was Bush’s assertion that the United States was at war.
A famous remark can help orient us with regard to President Bush’s ability to define this new constitutional reality. In an article on the anti-analytical qualities of the Bush presidency, reporter Ron Suskind quoted a “senior adviser to Bush.” The adviser characterized Suskind as being “’in what we call the reality-based community,’ which he defined as people who ‘believe that solutions emerge from your judicious study of discernible reality.’” He continued, “’That’s not the way the world really works anymore . . . We’re an empire now, and when we act, we create our own reality. And while you’re studying that reality – judiciously as you will – we’ll act again, creating other new realities, which you can study too, and that’s how things will sort out. We’re history’s actors . . . and you, all of you, will be left to just study what we do.’”
No doubt some analyses of the “reality-based community” remark focus on the implicit assumption of the Bush adviser that the administration was immune from the real-world consequences of its actions. However, consider this remark in the light of 9/11. First, it suggests that the exercise of power is transformative. Power creates its own reality to which others must respond. It also points to the first-mover status accorded to the president as Commander in Chief after a surprise attack on the United States. Because the war on terror justified preemptive actions, the administration will always stay one step ahead of “judicious study” through the use of surprise to throw our enemies (and, as it happens, the reality-based community at home) off balance.
Any surprise attack on the United States would likely give the sitting president this sort of unique power. The 9/11 attacks gave President Bush an enormous opportunity to shape public deliberation for the conflict to come. The president had the option of encouraging public debate on the nature of the response. Instead, President Bush immediately categorized the attacks as a military operation, akin to an invasion by a foreign state. The President told his advisers “’we’re at war’” just hours after the attacks occurred and made a global war on terror the official policy of the executive branch. Two days after 9/11 the President told the press, “’[N]ow that war has been declared on us, we will lead the world to victory.’”
The potent framing effects of Bush’s statements pose a serious difficulty for theories of constitutional change based on public deliberation or constructions. Bush’s definition of reality so thoroughly disabled the public sphere that the press and the public were still having trouble escaping the 9/11 frame as the Iraq War began in early 2003. This suggests that a theory of change that is not dependent on a particular normative path and is more attuned to the disruptive potential of the exercise of textual power is more useful in understanding the presidency after 9/11. Posted
by Stephen Griffin [link]