The Importance of Thinking Constitutionally

• Published date: 01 May 2009
• Date: 01 May 2009
• DOI: http://doi.org/10.1111/j.1540-6210.2009.02002.x
• Author: David H. Rosenbloom

550 Public Administration Review • May | June 2009

David H. Rosenbloom

American University

 e Importance of  inking Constitutionally

James P. Pf‌i f‌f ner, Power Play:  e Bush Presidency

and the Constitution (Washington, DC: Brookings

Institution, 2008), 299 pp. $28.95 (cloth), ISBN:

9780815770442.

Power Play should be required reading for

everyone with an interest in U.S. public

administration, especially those who are

inclined to follow Woodrow Wilson’s famous claim

that, for the most part, public administration stands

apart from constitutional theory. Historically, along

with its luminaries and myriad reformers, the f‌i eld of

public administration as a whole has largely inter-

preted the U.S. Constitution’s separation of powers in

ways that expand presidential authority over federal

agencies and restrict Congress’s constitutional role

in regulating and overseeing the executive branch.

“Executive-centered,” or “executivist” perspectives, as

Pf‌i f‌f ner calls them, have been justif‌i ed in the name of

democracy, ef‌f‌i ciency, national security, and account-

ability. However, Pf‌i f‌f ner cogently argues that good

intentions are irrelevant. In the U.S. constitutional

context, the separation of powers is fundamental to

liberty and the rule of law. When a president asserts

extraordinarily broad constitutional powers, as did

President George W. Bush, both are at risk.

 e f‌i rst four chapters of Power Play present succinct

and cogent analytic reviews of the development of the

rule of law and the separation of powers in England

and the United States. Chapters 2 and 3, on “ e

Nature of Executive Power” and “Creating Individual

Rights and an Independent Legislature,” should be of

particular interest to readers of Public Administration

Review.  ese chapters explain the evolution of separa-

tion of powers theory and the struggle in England to

gain parliamentary supremacy over an absolutist mon-

archy. Chapter 4 focuses on “ e American Constitu-

tion.”  ese chapters set the stage for understanding

the magnitude of the Bush administration’s claims to

executive powers, which placed the president above

the law.

Chapter 5–8 present richly detailed analyses of how

President Bush’s actions undermined the rule of law

with regard to habeas corpus, torture, surveillance of

individuals, and presidential signing statements. Each

chapter is balanced and well crafted in its treatment

of complex facts and legal arguments. Each concludes

that the Bush administration acted as though it was

above the rule of law—and more or less with impu-

nity. For example, with regard to “enemy combatants,”

Pf‌i f‌f ner concludes, “President Bush was asserting a

monarchical prerogative that Magna Carta (1215),

the Petition of Right (1628), the Habeas Corpus Act

(1679), and the common law had taken away from

English kings over the centuries” (54). Regarding tor-

ture, “ e Bush administration went to great lengths

to insulate itself from possible accountability for the

actions of its interrogators. It argued that the president

was not bound by the Geneva Conventions, by

U.S. law [including constitutional law], or by custom-

ary international law” (145). In terms of surveillance,

the administration violated the Foreign Intelligence

Surveillance Act and repeatedly dissembled about it.

Although Bush’s signing statements did not violate the

rule of law per se, they may present the greatest

long-term threat to it: “In these signing statements

President Bush directly challenged the ability of Con-

gress to constrain executive actions, the nature of the

rule of law in the United States, and the meaning of the

separation of powers system. . . . President Bush chal-

lenged the authority of Congress and the law to force

him to do anything he deemed an unconstitutional

infringement on his authority as president” (195).

To some extent, a theory of a unitary executive branch

underlies these Bush administration challenges to the

rule of law, most explicitly in the case of signing state-

ments. Although Pf‌i f‌f ner reviews this theory and evalu-

ates its claims, he does not connect it to the principle

of “unity of command,” espoused as almost inviolable

by the public administration orthodoxy of the 1880s

to the 1930s and treated as received wisdom by many

today. In my view, neither does he take contemporary

executivists in public administration, political science,

the punditry, and politics suf‌f‌i ciently to task. Bush has

had many enablers, and, as a f‌i eld, public administra-

tion is not without fault. Pf‌i f‌f ner’s conclusion reminds

us of the danger of neglecting to think constitutionally:

David H. Rosenbloom is Distinguished

Professor of Public Administration in

the School of Public Affairs at American

University in Washington, DC. He was editor

in chief of

Public Administration Review

from 1991 to 1996. He is a member of the

National Academy of Public Administration

and received the 2001 John Gaus Award for

a lifetime of exemplary scholarship in the

joint tradition of political science and public

administration.

E-mail: rbloom313@hotmail.com

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