Sunday, February 15, 2009
Professor Stephen Griffin (Tulane) in his latest and characteristically thoughtful piece The Bush Presidency and Theories of Constitutional Change, just posted on ssrn, takes on this provocative question:
Can existing theories of constitutional change account for the Bush presidency?
Griffin argues that one can: his own. And he makes a very persuasive case. Agree or disagree with his ultimate conclusion, though, this piece is well worth your time. I highly recommend it.
As Griffin points out, the Bush presidency presents a hard case for constitutional change theories: The immediate precipitating events--the 9/11 attacks--were extraordinary; the administration's claims of inherent executive authority were unprecedented; and the constitutional decisionmaking went on largely outside of the public's view.
In the wake of the attacks and as part of the war on terror, the administration authorized indefinite detention without due process, torture, and NSA surveillance outside of the FISA framework, to name only "the most salient departures."
So how to explain this?
Griffin argues that the leading theories of constitutional change--Llewellyn's unwritten "working constitution"; Ackerman's "key constitutional transformations"; Balkin and Levinson's "high politics"; and Whittington's "constitutional construction"--are ill-suited for the task:
Lllewellyn's theory does not allow a role for the rules contained in the text of the Constitution and the special status of the institutions founded on those rules. Theories based on the tidal force of social movements cannot help in understanding the latent potential institutional structures unleashed by seemingly world-historical events. And theories that build from actions in the public arena are not useful in probing a relentless struggle for political advantage that occurs behind closed doors.
What the Bush constitutional changes need is an institutional theory of constitutional change--Griffin's theory--based upon "the historical development and interplay of state institutions."
The Bush presidency well illustrates that in a constitutional order where formal change is difficult, changes in institutional structure can be an effective substitute. The Bush administration adroitly used institutional change as a pathway to changing the constitutional order.
Griffin offers three examples. First, Bush's claim in the immediate wake of the 9/11 attacks that "we're at war" came with significant constitutional implications: It meant that the President acted with all his substantial powers as Commander in Chief in responding to a surprise attack. Griffin:
By describing 9/11 as a war, the president short-circuited any meaningful debate over the nature of the attacks and the appropriate response. But his constitutional claim was arguably more significant. While the president participated in the process that led to the September 2001 [AUMF], he reserved the argument that he did not need it to prosecute the war. In two subsequent letters to Congress, the president ignored the AUMF and apparently invoked his traditionally recognized power to respond to sudden attacks . . . .
Next, the administration based its initiatives on "secret constitutional rationales." Thus it bypassed the ordinary system of interagency review, it dodged Congress, and it avoided public scrutiny and debate, at least until its initiatives were uncovered. The opacity allowed the administration to "blow through [laws it didn't like] in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operation."
Finally, the administration "operationalized" the Office of the Vice President, treating it as a cabinet-level agency with statutory authority, but one run right out of the White House. This meant that the Office of the Vice President "could intervene with respect to any policy without being subject to normal statutory or interagency checks." It also resulted in the "subordination of the OLC to the White House."
Griffin's institutional theory is a useful way--and quite possibly the most useful way--of explaining constitutional changes in the Bush administration. The piece is well worth reading for this argument alone.
But Griffin's article is perhaps more important for what it might spawn. This piece is, by its timing, restricted in its ability to tell the full story of constitutional change in the Bush administration. Indeed significant portions of the next chapter are playing out in the courts right now. And the Obama administration signaled early that it will roll-back or reevaluate many of the Bush administration constitutional claims and its anti-terrorism policies (though its latest decisions--see here and here--leave some doubt). Between the courts and the new administration's positions (and a Democratic Congress), it's not at all clear so soon after the Bush administration that its extraordinary constitutional claims will result in any enduring constitutional changes. As this develops, there's much more work to do. Griffin's piece gives us an important starting point.
I highly recommend this excellent article.