As the George W. Bush presidency began to wind down, a cottage industry of books emerged to build the growing, though still contested, consensus that the series of actions made by the Bush administration as part of its response to the terrorist attacks of September 11 was not only unprecedented but also uniquely located at the boundaries of legality. Howard Ball, Harold Bruff, and James Pfiffner have contributed three value-adding volumes to the debate about the state of presidential power after Bush 43.

Ball's thoroughly researched Bush, the Detainees, and the Constitution chronicles the administration's excursions to the outer limits of the Constitution when dealing with “enemy combatants.” The book is both a critical examination of the Bush administration's concerted efforts to circumvent the Supreme Court's decisions on the enemy combatant (Ball prefers “enemy prisoners”) cases in 2004 and 2006 and an indictment of a presidency so committed to routinizing emergency powers that it amounted practically to a “constitutional dictatorship” (p. 32).

After laying out his thesis in the first chapter, in the next Ball traces the administration's reasoning for treating all persons captured in Afghanistan and Iraq as unlawful enemy combatants and, therefore, not protected by international law, while in Chapter 3 he explores how these persons were treated by U.S. military personnel, the CIA, and the FBI.

In the second half of the book, Ball turns specifically to the battle between the administration and the Supreme Court over the rights of U.S. citizens held as “enemy combatants” in Rasul v. Bush (2004) and Al Odah v. US (2004) (consolidated by the Court), Rumsfeld v. Padilla (2004), and Hamdi v. Rumsfeld (2004) in Chapter 4. In Chapter 5, the author discusses the administration's efforts to “outflank and, at best, minimally comply with the Court's orders” (p. 124). The book concludes with the Bush administration's final word on the right of detainees when it successfully pushed the 2006 Military Commissions Act through Congress.

Although Ball proposes to answer “the question of whether or not a president can be constrained constitutionally, by Congress, or by the U.S. Supreme Court” (p. 3), his book focuses on the battle for supremacy between the first and third branches, and not the first and second. He argues that throughout the battle between the first and the third branches, strategists and lawyers in the executive branch proffered four arguments in favor of presidential supremacy: 1) As commander-in-chief, the president has the authority to override laws and treaties in defense of national security. 2) U.S. antitorture laws are consistent with CIA interrogation techniques. 3) The Guantanamo detainee prison was beyond the jurisdiction of federal courts. 4) In times of war, courts should defer to the commander in chief (pp. 89–90).

By Ball's account, until the Supreme Court intervened in 2003–4, Congress gave the Bush administration full reign to conduct the war on terror. While he chastises a “somnambulant Congress” (p. 139), he simplifies the problem by characterizing it as a failure of collective congressional will or courage and not a result of the partisan loyalties across the branches that impeded checks and balances. All told, although Ball does not show why congressional concurrence is the same thing as acquiescence, he may well be correct in his projection that “[w]ere it not for the U.S. Supreme Court and the 2006 midterm elections, this story's ending would have been very different–much more dreadful than the one told in this book” (p. 5).

Bruff's Bad Advice is a cautionary tale of executive advising gone awry in the Bush administration, as well as an indirect manual of instruction for future advisors, whose job, Bruff argues, is to “translate the Delphic materials of the Constitution … into real advice about the limits of the law” (p. 2). He argues that President Bush, like Shakespeare's Henry V, “received the advice he wanted, instead of the advice he needed,” and argues that bad advisors are those who tell their bosses only what they want to hear (p. 8). The ideal lawyer-statesman, for Bruff, exercises “practical wisdom” in seeking a reflective equilibrium between means and ends, rather than ideology, which is the mother of “bad advice” (pp. 82–83).

Bruff begins in Part I of his book with an exposition on the dilemma that executive advisors have faced for centuries—to honor both the executive they serve and the law they are committed to enforce—and proceeds to discuss the institutional development of the advising function from fifteenth-century England through the course of American history.

The second half of the book is a dismal record of “bad advice” supplied in the Bush administration, with chapters dedicated to the ways that executive branch lawyers crafted legal opinions justifying warrantless surveillance of Americans by the National Security Agency, the detention of enemy combatants, the suspension of the Geneva Conventions, military trials, and interrogation techniques amounting, some argue, to torture.

Bruff argues that the president relied on ad hoc groups of ideologically like-minded personnel and staffers in the White House, the Vice President's Office, the Department of Defense, and the Office of Legal Counsel who formed “shadow governments” within the federal government (p. 117). Of particular note is the War Council, consisting of White House Counsel Alberto Gonzales, his first deputy Tim Flanigan, the Vice President's Counsel David Addington, Defense General Counsel Jim Haynes, and John Yoo of the Office of Legal Counsel. Bruff observes that “[v]iewing law as an implement of the war on terrorism rather than a set of constraints upon waging it, the administration employed its lawyers as shock troops of reverse lawfare, not as detached counselors who could anticipate and forestall future legal jeopardy” (p. 285)

Bruff concludes with a call for lawyers to make a “renewed commitment to their craft,” (p. 297), which consists of a substantive understanding of separation-of-powers law and an adherence to professional discipline. This is, in effect, a legitimate call to virtue and self-restraint; however, if the Founders would not assume that virtue would be naturally forthcoming in the president, one could argue that we would be even more hard-pressed to find it in his chosen advisors.

While Bruff does a fine job of chronicling the paper and argumentative trail of “bad advice,” he falls short of addressing the admittedly difficult chicken-and egg-question: did bad advice precede unsavory presidential (and vice presidential) intentions, or did these intentions precede and inspire the “bad advice”? This is an important causal relationship to unpack because if, as is proverbially accepted, the buck stops at the Oval Office, the president must still take responsibility for the bad advice that he sought, and if so the problem of bad advice is only incidental to the larger problem of finding virtue in the executive. And if, as the author notes, “[t]here are no signs that they [the president's advisors] had to work very hard to persuade him of the wisdom of their worldview” (p. 116), then he might have gone further to address the systemic problem of the politicization of the executive branch and the political appointment process that Paul Light and others have written about.

Pfiffner, in Power Play, argues, like Ball and Bruff, that President Bush's claims to authority undermined the separation of powers and stridently “depart[ed] from constitutional limits” (p. 6), reminding us that the whole point of our commitment to constitutionalism is our belief that power should never be left unchecked.

After the author's thesis is stated, Chapters 2, 3, and 4 recount the long and hard-fought battle to secure individual rights against the might of kings, and to establish a government of laws and not of men. Arrayed against this long view of our constitutional history is the severity of the Bush administration's transgressions, which Pfiffner brings into sharp relief. In the next four chapters, Pfiffner catalogs each of these infractions, discussing how the Bush administration denied the writ of habeas corpus to people deemed to be “enemy combatants,” suspended the Geneva Conventions, and permitted investigation techniques that many deem to be torture, ordered the surveillance of Americans without a warrant as required by the Foreign Intelligence Surveillance Act (FISA) of 1978, and issued signing statements declaring that the president has the right not to enforce parts of laws that interfere with executive authority.

How big a deal these transgressions are turns quite a bit on the prediction that there are long-term implications to these claims to authority. At the heart of the problem is Pfiffner's assumption that “executive claims to constitutional power ratchet up; they do not swing like a pendulum, unless the other two branches protect their own constitutional authorities” (p. 243). The claim, further, turns on whether or not constitutional legitimacy (and by implication what is or is not out of bounds) is a fixed or an historically evolving standard. Whereas Ball argues that previous presidential exercises in prerogative were appropriate and their historical legacy innocuous, Pfiffner argues that all new expansions of prerogative, even when legitimate, “have long-range repercussions” (p. 243).

Power Play is more an indictment of the Bush administration than an interrogation of the nature of executive power. Critically, Pfiffner concedes that “the prerogative power might be legitimately exercised in the case of a terrorist attack similar to 9/11” (p. 28). If so, perhaps Bush “claimed powers once asserted by kings” (p. 2) because some of these powers, though separated and divided, have indeed passed undiluted from kings to the American president, and we have been slow to acknowledge this embarrassing blotch on our Constitution only because Necessity is the mother of prerogative. If “the argument of this book is that the Constitution placed constraints on executive authority … although the framers understood that the executive would act quickly in emergencies” (p. 6), Pfiffner might have pushed his argument further to consider the possibility that Bush's “power play” was made possible by the Framers' paradoxical and (necessarily) only partially successful attempt at codifying prerogative.

In summary, I note three observations that may open up further avenues for research and debate. First, all three books reviewed here offer a declension narrative, starting with Founding genius and virtue and ending with latter-day myopia and perversion. But it might be worth asking: What if the Founders were neither geniuses nor saints, and they were skeptical enough of both the ambition of leaders and the recalcitrance of followers to constitutionalize monarchy (as Harvey Mansfield has argued in Taming the Prince in 1993)? In deciding on the constitutionality of a national bank, as Bruff correctly observes, even George Washington “was prepared to disregard his attorney general's official opinion in favor of another that suited him better” (p. 19). If so, we might only be slowly waking up to that fact that the Founders retained elements of monarchy and prerogative in the Constitution, to be invoked during crises (genuine or staged).

Second, all three books essentially tell a top-down story about the power play between the three federal branches, but they barely discuss the institutional balance of power, which is itself a result of public opinion, and, in particular, the distinct susceptibility of public opinion to presidential persuasion in moments of crisis. There is presidential power and there is war power (and there is presidential war power.) War powers open our eyes to the upper limit of presidential power, because it is just where prerogative is most in need and expansive indeed. As the American people were shell-shocked after the events of September 11, it was in this fluid and conducive environment that the Authorization for Use of Military Force Revolution (2001), the Iraq Joint Resolutions (2002), and the USA Patriot Act (2001) were passed.

Third, I wonder if it would have been rewarding for the authors to have toyed with the possibility that the Bush administration's road to constitutional hell was lined with at least some good intentions, or even the possibility that what Bush did was constitutional, in the sense that while our Constitution was arguably stretched beyond recognition, we did not, and probably shall never, invoke its provisions for impeachment. And if so, either our Constitution is more elastic than we have expected, or presidential war power in the immediate aftermath of 9/11 could well have been sui generis because the president was allowed to cry wolf for up to six years, but not much more. Nevertheless, Ball, Bruff, and Pfiffner are right to remind us that as regards presidential power, and especially presidential war power, we need to stay ever vigilant.