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WASHINGTON President George W. Bush has failed in his most important responsibility “to preserve, protect and defend” the Constitution of the United States, according to a new Cato Institute study. The authors of the study, legal scholars Gene Healy and Timothy Lynch, say that the administration’s sweeping claims of executive power in the Padilla case would suggest that Mr. Bush believes “the liberty of every American rests on nothing more than the grace of the White House.”
The study, “Power Surge: The Constitutional Record of George W. Bush,” details a pattern with the Bush administration of a “ceaseless push for power, unchecked by either the Courts or Congress” on issues ranging from war powers, habeas corpus, and federalism to free speech and unwarranted surveillance.
“That pattern should disturb people from across the political spectrum,” the authors write. “Far from defending the Constitution, President Bush has repeatedly sought to strip out the limits the document places on federal power.”
At the heart of the study is a careful examination of the administration’s official legal briefs and actions since 9/11. The authors take issue with the administration’s claim that in time of war the president is essentially the law and that no statute or constitutional restraint can stand in the way when he is acting to preserve national security.
The study analyzes, for example, the so‐called torture memos in which administration lawyers maintained that Congress is powerless to interfere with the president’s authority to order torture of enemy prisoners. “The Constitution’s text will not support anything like the doctrine of presidential absolutism the administration flirts with in the torture memos,” they conclude.
Likewise, the authors give short shrift to legal arguments used to expand the federal power to eavesdrop and to the president’s stripping of constitutional protections from Americans suspected of terrorist activity.
The study also takes President Bush to task for policies unrelated to the war against the terrorists. Bush has repeatedly undermined the constitutional principle of federalism. Indeed, the authors question if there is any area of American life that this president believes should be left to the states. Bush’s Justice Department has attempted to override state policies regarding medical marijuana, right‐to‐die legislation and criminal law, while his education department has sought ever more control over all American schools, the authors note.
Healy and Lynch conclude: “President Bush’s Constitutional vision is sharply at odds with the text, history and structure of our Constitution, which authorizes a government of limited powers.”
Special Research Monograph: https://www.cato.org/pub_display.php?pub_id=6330
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