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The Bush Administration as History

By Jack M. Balkin

I've posted on SSRN the abstract for one of my current papers: A Sword and a Shield: The Uses of Law in the Bush Administration. This essay is forthcoming in a collection, W as History: America's Leading Historians Take a First Look at the Presidency of George W. Bush, edited by Princeton University political historian Julian Zelizer. The collection will be published by Princeton University Press in 2010. For copyright reasons, I can't post the paper, unfortunately.
One of the points the paper makes is that the Bush administration was not a lawless administration. Instead, law became central. Here's a snippet from the text:

Although the Bush Administration sought to avoid judicial review [of war-on-terror-related policies], lawyers were front and center in White House decision-making. According to Jack Goldsmith, faced with concerns about the possibility of another terrorist attack, and fear of being blamed for not avoiding it, the president could only justify the failure to take protective action if he had a good reason. ?A lawyer?s advice that a policy or action would violate the law, especially a criminal law, was a pretty good excuse.? The White House was ?haunted? by 9/11, Goldsmith argues, and ?obsessed with preventing a recurrence of the expected harsh blame after the next attack.? Because of this, ?the question, ?What should we do?? ...often collapsed into the question ?What can we lawfully do??...It is why there was so much pressure to act to the edges of the law.? The central role played by lawyers had limitations, however. Lawyers ?look to legal sources to find the answers,? said 9/11 Commission Executive Director Philip Zelikow. This left out other important factors, such as the impact of a policy on U.S. foreign relations and on domestic public opinion.

The essay also places war-related policies in the context of a broader legal agenda. The essay is not at all comprehensive, however, since essays for this book -- intended for a broad audience -- have to be short. But working on this causes me to think that historians will have much to say about the Bush years for a long time, and one of the moves historians will bring to the table is an effort to contextualize administration actions -- first by beginning the story before 9/11, and finding continuities, and second by setting the Bush years within the broader trajectory of the history of legal conservatism.

The abstract is below the fold.

The Bush administration has been criticized for departures from the rule of law, but within the administration law was not ignored. Instead it was seen variously as a tool and as a potential threat to the operation of the executive branch. Two narratives compete for attention. In an era when the legality of torture was openly debated, the deployment of law in wartime seemed the most immediate issue. At the same time, however, a decades-long conservative movement to change American law was both significantly furthered and complicated, as Supreme Court appointments moved the Court to the right, but the lack of a common jurisprudence hampered the consolidation of a new conservative constitutional vision. More conservative courts might seem a safe haven for the president, less likely to challenge executive branch actions, but the Bush administration had a complicated relationship with courts. The administration sought out the courts to further aspects of a social policy agenda, such as restricting abortion rights and gun control. But when it came to challenges to the executive branch itself, the Administration used creative means to avoid court jurisdiction, including constitutional theories about executive power. Law was both a sword and a shield: it was a tool used to further some conservative objectives, and it was a shield intended to protect executive autonomy.

Cross-posted from the Legal History Blog -- where you can leave comments. Comments there are moderated, so please be patient.

Full post as published by Balkinization on September 24, 2009 (boomark / email).