Power and Constraint: The Accountable Presidency after 9/11.

Author:Karako, Tom
Position:Book review

Power and Constraint: The Accountable Presidency after 9/11. By Jack L. Goldsmith. New York: W. W. Norton and Company, 2012. 336 pp.

Books on the presidency often breathlessly bemoan a cult of presidential power, lament that the separation of powers is at an end, and claim that executive power is unbounded. In a highly nuanced and thoughtful treatment of the post-George W. Bush presidency, Jack Goldsmith depicts remarkable moderation in today's national security executive. He tells a story of new developments, which "belie the apocalyptic claims that we are living in an era of unrestrained executive power." The result is not "Madison's nightmare" (see Peter M. Shane, Madison's Nightmare: How Executive Power Threatens American Democracy [Chicago: University of Chicago Press, 2009]), but, rather, that "the father of the Constitution would smile" (pp. 252, 243).

In Power and Constraint, as in his earlier The Terror Presidency: Law and Judgment Inside the Bush Administration (New York: W. W. Norton and Company, 2009), Goldsmith rejects the aggressive and often unilateral counterterrorism programs of the early Bush administration, and praises the pushback that moderated those policies and gave them firmer legal footing. After the presidential excesses following 9/11, various institutions "pushed back harder against the Commander in Chief than in any other war in American history," which, on balance, was "all very healthy for the presidency and for national security" (p. 241).

Both of Goldsmith's works owe much to Arthur Schlesinger, Jr.'s The Imperial Presidency (Boston: Houghton Mifflin, 1973), which, at times, is surprisingly friendly to executive power. And with the theme that constraints ultimately "strengthen the presidency and render it more effective" (p. xv), he channels the insight of Harvey C. Mansfield, Jr.'s Taming the Prince: The Ambivalence of Modern Executive Power (New York: The Free Press, 1989) that executives draw strength by being subordinate to law. Goldsmith is a professor at Harvard Law School, and his legal roles during the Bush administration were with the Department of Defense (2002-03) and the Office of Legal Counsel (2003-04), but the account here resembles political history as much as formal legal analysis.

Although everyone from former Vice President Dick Cheney to the ACLU expected that the new Obama administration would dramatically change the Bush counterterrorism programs, most of them had been tempered to such...

To continue reading