The gradual accumulation of presidential power has a rich history, punctuated by significant periods of expansion during wartime. Each major war brings with it a new equilibrium of executive authority in the national security realm. The “War on Terror” is no exception. As Chris Edelson’s Power without Constraint demonstrates, presidents since 9/11 have staked out authority far afield of the powers imagined by the Framers. Edelson’s work is a forceful reminder that executive power accumulates in the office of the presidency, jealously guarded by its inhabitants regardless of partisanship or promises to follow basic constitutional edicts.

The excesses of the George W. Bush presidency are well-known. Using unitary executive theory, the Bush administration, most notably John Yoo, argued that the president’s power to protect the nation subordinated legal constraints laid out in the Constitution and by statute. The unitary executive theory holds that because executive power was left undefined in the Article 2 vesting clause, traditional executive powers not mentioned in the Constitution are the president’s alone, providing presidents with a larger reservoir of power than what is stated by a plain reading of Article 2. Presidents have the plenary power to make war; indefinitely detain suspected terrorists, including US citizens, without due process; institute interrogation practices that amount to torture, despite clear statutory requirements to the contrary; and institute a warrantless surveillance program that clearly violates existing statutes (p. 14). Such an expansive interpretation of executive power, of course, stultifies the ability of Congress or the courts to check the president, especially when done so in secrecy.

This is where we get to the central argument of Edelson’s book. While most legal and presidential scholars, with some exceptions, reject the plausibility of the unitary executive theory, the Bush presidency’s brash justifications for its unilateral and unlawful actions laid the groundwork for a vast expansion of executive authority. During his campaign for the presidency, Barack Obama clearly stated his opposition to Bush’s unilateral approach, but as Edelson argues: “The Obama administration . . . found different ways to reach essentially the same conclusion as the Bush administration” in prosecuting the War on Terror. “Obama . . . has concluded that when it comes to the use of military force, targeted killing, state secrets, and surveillance, the president can do what he wants, regardless of statutory or constitutional constraints” (p. 4). Obama’s claims to respect legal limits on the president’s authority were purely rhetorical.

Moreover, efforts to restrain the president’s actions by both Congress and the courts have fallen far short of the mark, amounting to acquiescence. Edelson’s work pierces the facade of the Obama administration’s claim for respect of constitutional principles in the national security realm. The author’s unwillingness to accept the administration’s claims and instead thoughtfully and critically examine the legal and historical record of both the Bush and Obama administrations’ prosecution of the War on Terror does a great service for students of politics concerned with excess in the executive branch. It is difficult to argue with Edelson’s conclusion that “when the rhetoric is stripped away and the [Obama] administration’s actions and explanations are examined more closely, it is clear that the claimed limits are only an illusion” (p. 6).

Power without Constraint is a thorough piece of legal scholarship. The basic argument is presented in the first several pages. The rest of the book is broken down into three sections. In the first section, Edelson offers a concise takedown of the unitary executive theory and other arguments for unfettered executive authority. One school of thought that merits more attention by the author is what has been called “constitutional construction.” This refers to the process whereby the very meaning of the Constitution itself is transformed as the result of altered behavior by the branches of government in the face of significant challenges, such as World War II, the Cold War, and so on (see Keith Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning, 1999). This oversight is magnified in the subsequent chapter, which addresses the expansion of executive authority over time, with particular attention to the presidencies of Franklin D. Roosevelt, Harry Truman, and Richard Nixon. Edelson clearly has a bone to pick with unilateral executive action, which is apparent when he writes: “It is far more difficult to find examples of unilateral presidential action leading to good results than it is to find examples of unilateral action that ended badly” (p. 23). This is an overstatement. What of the various unilateral agreements made by FDR with allied powers prior to World War II, or Truman’s integration of the military via executive order? History is replete with examples of unilateral actions that went well and unilateral actions that ended badly. However, this does not necessarily mean that we should reject all forms of unilateral executive action, especially in a constitutional context where the boundaries of such action are not etched in stone.

Sections 2 and 3, in turn, tackle the unlawful actions taken by the Bush and Obama administrations in their prosecution of the War on Terror. Edelson focuses primarily on the justifications proffered by administration lawyers. He combs through declassified Office of Legal Counsel (OLC) and other legal memoranda, statutes, court decisions, and other original analyses of administration behavior in prosecuting the war. Edelson’s takedown of John Yoo’s famous memo on the president’s war powers in the wake of the 9/11 attacks is especially strong. It becomes quickly apparent that Yoo’s memo is not a serious piece of legal writing, but rather an argument intended to get a particular result. Such can be said for other memos written by Yoo’s successors, even those who rejected the notion of plenary presidential power in these areas but then somehow justified the very same behavior based on flawed legal reasoning. The chapter on torture is especially troubling, as it documents the lengths to which Bush’s lawyers would go to justify inhumanity.

The strength of Edelson’s work comes to the fore in Section 3, where we see how Bush’s behavior has precedential effects. The author presents a methodical analysis of the Obama administration’s actions and justifications for extralegal action based on “faux law” (p. 114). In many instances, the Obama team was left to defend Bush’s actions, often an insurmountable task. In their efforts, Obama’s lawyers justified unjustifiable behavior, linking presidential action to the misinterpretation of statutes, including revisions to the Patriot Act and the Foreign Intelligence Surveillance Act (FISA). Edelson suggests that what Obama did was linked back to the 2001 Authorization for Use of Military Force (AUMF) passed in the immediate wake of 9/11, no matter how fallacious the argument. The best example of this is the administration’s justifications for combat operations against ISIS, a terrorist organization that did not even exist in 2001. It is hard to take issue with much of the author’s interpretation of legal arguments, although his case against Obama regarding detention at Guantanamo and the use of torture is significantly weaker than are his cases against Obama on warrantless surveillance, extraordinary rendition, and the use of the state-secrets doctrine.

While the book represents excellent legal scholarship on presidential power in the wake of 9/11, political scientists who study the presidency from a behavioral perspective may be unsatisfied with the book’s limitations. The author does not engage at all with the burgeoning literature on presidents’ use of unilateral power, where scholars tend to focus on political constraints on presidential behavior, rather than on legal constraints. Moreover, Edelson avoids tackling what is perhaps the most important question: Why is there such continuity from Bush to Obama? He addresses this question with but a single paragraph in the conclusion, leaving readers to figure this one out on their own. Notwithstanding these limitations, Power without Constraint serves as an important reminder that Americans cannot expect the executive to check itself and that in the area of national security, Congress and the courts are ill-equipped for checking the executive.