The Contemporary Presidency Constraining Executive Power: George W. Bush and the Constitution


  • AUTHOR'S NOTE: I am grateful to James Dunkerley, dean of the Institute for the Study of the Americas, and Nicholas Mann, dean of the School of Advanced Study at the University of London for their hospitality during my six-month visit with them in 2007 as S. T. Lee Professorial Fellow. Other colleagues in the United States and the United Kingdom gave me helpful comments and advice as this article was being prepared, and I would like to thank Joel Aberbach, Sharrar Ali, Niels Bjerre-Poulson, Mary Boardman, Nigel Bowles, Lara M. Brown, Brian Cook, Philip Davies, John Dumbrell, George Edwards, Lou Fisher, Hugh Heclo, Jon Herbert, Matthew Holden, Don Kash, Nancy Kassop, Jeremy Mayer, Iwan Morgan, Dick Pious, Paul Quirk, Jon Roper, Richard Rose, Herman Schwartz, Bob Spitzer, and Jeffrey Weinberg.

James P. Pfiffner is a university professor in the School of Public Policy at George Mason University. He has written or edited ten books on the presidency and American national government, including The Strategic Presidency, The Modern Presidency, and The Character Factor.


The modern tradition of constraining the power of political executives has deep roots in Anglo-American governmental traditions. The Magna Carta of 1215, the Habeas Corpus Act of 1679, the English Bill of Rights of 1689, the Common Law, and other documents and traditions of the British Constitution all provided precedents upon which the Framers of the U.S. Constitution drew. From the ratification of the U.S. Constitution to contemporary times, the experience and precedents of the presidency have also played an important role in laying the basis for the legitimate authority exercised by the president in the constitutional system. This article will examine several actions of President George W. Bush and argue that he has made exceptional claims to presidential authority. Four instances of President Bush's claims to presidential power will be examined: his suspension of the Geneva Conventions in 2002, his denial of the writ of habeas corpus for detainees in the war on terror, his order that the National Security Agency monitor messages to or from domestic parties in the United States without a warrant, and his use of signing statements.