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The Law: Bush, Cheney, and the Separation of Powers: A Lasting Legal Legacy?


  • AUTHOR'S NOTE: My thanks to John Hanley for his research assistance on this article and to Louis Fisher for his very welcome editorial suggestions.

Gordon Silverstein is an assistant professor of political science at the University of California, Berkeley. He recently published Law's Allure: How Law Shapes, Constrains, Saves and Kills Politics.


The George W. Bush administration will long be remembered for its constitutional and legal arguments on behalf of exclusive and inherent executive power. In its extreme form, this uncompromising effort appears to have failed, and may even have pushed the judicial branch to limit executive authority and return to a more traditional insistence on interbranch cooperation in foreign affairs. Ironically, the Bush-Cheney legal legacy ultimately will depend on the Barack Obama administration's public commitments and legal arguments, but early evidence suggests that President Obama's assertions of executive power will rest less on assertions of constitutional prerogative, and more heavily on statutory delegation as well as long-standing judicial precedent.