Power Surge: The Constitutional Record of George W. Bush

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White Paper

May 1, 2006

by Gene Healy and Tim Lynch

Gene Healy is senior editor and author of "Arrogance of Power Reborn: The Imperial Presidency and Foreign Policy in the Clinton Years". Timothy Lynch is director of the Project on Criminal Justice and author of "Dereliction of Duty: The Constitutional Record of President Clinton."

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Executive Summary

In recent judicial confirmation battles, President Bush has repeatedly—and correctly—stressed fidelity to the Constitution as the key qualification for service as a judge. It is also the key qualification for service as the nation's chief executive. On January 20, 2005, for the second time, Mr. Bush took the presidential oath of office set out in the Constitution, swearing to "preserve, protect and defend the Constitution of the United States." With five years of the Bush administration behind us, we have more than enough evidence to make an assessment about the president's commitment to our fundamental legal charter

Unfortunately, far from defending the Constitution, President Bush has repeatedly sought to strip out the limits the document places on federal power. In its official legal briefs and public actions, the Bush administration has advanced a view of federal power that is astonishingly broad, a view that includes

a federal government empowered to regulate core political speech—and restrict it greatly when it counts the most: in the days before a federal election;
a president who cannot be restrained, through validly enacted statutes, from pursuing any tactic he believes to be effective in the war on terror;
a president who has the inherent constitutional authority to designate American citizens suspected of terrorist activity as "enemy combatants," strip them of any constitutional protection, and lock them up without charges for the duration of the war on terror— in other words, perhaps forever; and
a federal government with the power to supervise virtually every aspect of American life, from kindergarten, to marriage, to the grave.

President Bush's constitutional vision is, in short, sharply at odds with the text, history, and structure of our Constitution, which authorizes a government of limited powers.