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In recent judicial confirmation battles, PresidentBush has repeatedly—and correctly—stressed fideli-ty to the Constitution as the key qualification forservice as a judge. It is also the key qualification forservice as the nation’s chief executive. On January20, 2005, for the second time, Mr. Bush took thepresidential oath of office set out in the Consti-tution, swearing to “preserve, protect and defendthe Constitution of the United States.” With fiveyears of the Bush administration behind us, wehave more than enough evidence to make an assess-ment about the president’s commitment to ourfundamental legal charter.

Unfortunately, far from defending the Consti-tution, President Bush has repeatedly sought tostrip out the limits the document places on federalpower. In its official legal briefs and public actions,the Bush administration has advanced a view offederal power that is astonishingly broad, a viewthat includes

• a federal government empowered to regu-

late core political speech—and restrict itgreatly when it counts the most: in the daysbefore a federal election;

• a president who cannot be restrained,through validly enacted statutes, from pur-suing any tactic he believes to be effective inthe war on terror;

• a president who has the inherent constitu-tional authority to designate American citi-zens suspected of terrorist activity as “enemycombatants,” strip them of any constitution-al protection, and lock them up withoutcharges for the duration of the war on ter-ror—in other words, perhaps forever; and

• a federal government with the power to super-vise virtually every aspect of American life,from kindergarten, to marriage, to the grave.

President Bush’s constitutional vision is, inshort, sharply at odds with the text, history, andstructure of our Constitution, which authorizesa government of limited powers.

_____________________________________________________________________________________________________

Gene Healy is senior editor at the Cato Institute and author of “Arrogance of Power Reborn: The ImperialPresidency and Foreign Policy in the Clinton Years” (Cato Institute Policy Analysis no. 389). Timothy Lynch isdirector of the Cato Institute’s Project on Criminal Justice and author of “Dereliction of Duty: The ConstitutionalRecord of President Clinton” (Cato Institute Policy Analysis no. 271).

Executive Summary

Introduction

On March 4, 1793, George Washingtonstood before the assembled worthies in theSenate chamber in Congress Hall in Philadel-phia and delivered his second inauguraladdress, still the shortest inaugural speech onrecord:

Fellow citizens: I am again called uponby the voice of my country to executethe functions of its Chief Magistrate.When the occasion proper for it shallarrive, I shall endeavor to express thehigh sense I entertain of this distin-guished honor, and of the confidencewhich has been reposed in me by thepeople of united America.

Previous to the execution of any offi-cial act of the President, the Constitutionrequires an oath of office. This oath I amnow about to take, and in your presence:That if it shall be found during myadministration of the Government I havein any instance violated willingly orknowingly the injunctions thereof, I may(besides incurring constitutional punish-ment) be subject to the upbraidings of allwho are now witnesses of the presentsolemn ceremony.1

Washington’s second inaugural is a modelof presidential brevity, but it makes an impor-tant point. Fidelity to the constitutional oathof office should be a central factor in judgingpresidents; violation of that oath is justgrounds for “upbraiding” them, and more.Unfortunately, our modern political culturetreats the oath of office as little more than aceremonial exercise.

For the founding generation, however,such oaths had deep significance. As JusticeJoseph Story put it in his Commentaries on theConstitution, “Oaths have a solemn obligationupon the minds of all reflecting men,” and ifwitnesses in even minor civil or criminal casesare required to swear an oath, then “surely likeguards ought to be interposed in the adminis-tration of high public trusts, and especially in

such, as may concern the welfare and safety ofthe whole community.”2 Indeed, the Framersof the Constitution considered the presiden-tial oath important enough to specify theexact words that the president must speakbefore his ascendancy to office, as they did forno other position.

Thus, on January 20, 2005, at the WestFace of the Capitol, George W. Bush raisedhis right hand, put his left on the Bible, andtook the same oath he had taken four yearspreviously, the same oath Washington and40 other presidents had taken:

I do solemnly swear that I will faithfullyexecute the Office of President of theUnited States, and will to the best of myAbility, preserve, protect and defend theConstitution of the United States.3

What does it mean to “preserve, protect,and defend the Constitution of the UnitedStates”? One thing it cannot mean is that thepresident can act without reflecting on theconstitutionality of his actions, confidentthat the federal courts will step in to strikedown any actions that breach constitutionalboundaries. The text of the oath imposes anindependent obligation on the president to“preserve” the Constitution, an obligationthat cannot be fulfilled by an indifferent pos-ture that seeks to shift that responsibility tothe federal courts.

That the oath was not a mere formality—that it required independent constitutionaljudgment by the president—is clear fromearly historical practice. The leaders of theearly Republic emphatically did not believethe judiciary held a monopoly on constitu-tional questions. As Thomas Jefferson said,explaining his decision to pardon those whohad been convicted under the Sedition Actfor exercising their right to free speech:

The judges, believing the law constitu-tional, had a right to pass a sentence offine and imprisonment; because thepower was placed in their hands by theConstitution. But the Executive, believ-

2

Fidelity to theconstitutionaloath of office

should be a central factor

in judging presidents.

ing the law to be unconstitutional, werebound to remit the execution of it;because that power has been confidedto them by the Constitution. Thatinstrument meant that its coordinatebranches should be checks on eachother.4

Essential to maintaining those checks wasthe presidential veto. Our early presidentsbelieved their oath of office required them toveto unconstitutional legislation. Washingtonwas the first president to veto a bill, and hisfirst exercise of the Constitution’s veto powerwas carried out explicitly on constitutionalgrounds. In 1792 Washington vetoed a billapportioning representatives among the sever-al states, noting that it violated two constitu-tional requirements for apportionment.5 Presi-dent James Madison vetoed, on EstablishmentClause grounds, two bills giving special privi-leges to churches and an internal improvementbill, on the grounds that no enumerated con-stitutional power could justify the appropria-tion. In fact, when Andrew Jackson vetoed thereauthorization of the Bank of the UnitedStates on policy grounds as well as constitu-tional ones, his veto message caused a stir,given that many people at the time believedthat constitutional objections were the solelegitimate grounds for a veto.6

Though the Framers believed the oath ofoffice imposed a solemn obligation on thepresident to uphold the Constitution anddefend it from potential violations by coordi-nate branches, they were under no illusionsabout the oath’s inviolability. The oath wasmerely the first line of defense in a system ofchecks and balances designed to restrainabuses of power.

The fundamental defense against suchabuses would always reside in the people.Nearly a hundred years after Washington’sinauguration, Grover Cleveland, in his firstinaugural address, described the vigilance onwhich our Republic depends:

He who takes the oath . . . to preserve,protect, and defend the Constitution

of the United States only assumes thesolemn obligation which every patriot-ic citizen—on the farm, in the work-shop, in the busy marts of trade, andeverywhere—should share with him.The Constitution which prescribes hisoath, my countrymen, is yours; thegovernment you have chosen him toadminister for a time is yours. . . . Everycitizen owes to the country a vigilantwatch and close scrutiny of its publicservants and a fair and reasonable esti-mate of their fidelity and usefulness.7

It is in that spirit that this study will appraisethe constitutional record of President Bush.8

In a sense, George W. Bush campaigned onthe sanctity of the oath of office. His signaturemove on the campaign trail in 2000 was to endhis stump speech by pantomiming the oath ofoffice, raising his right hand in the air, his leftpositioned as if on an imaginary Bible, declar-ing that he would “swear to not only upholdthe laws of the land, but I will also swear touphold the honor and the dignity of the officeto which I have been elected, so help meGod.”9 Has he lived up to that promise “touphold the laws of the land”? From freespeech and unreasonable searches to war pow-ers, habeas corpus, and federalism, we willexamine the president’s words and actions inlight of the constitutional duties imposed bythe oath of office. The pattern that emerges isone of a ceaseless push for power, uncheckedby either the courts or Congress, one, in short,of disdain for constitutional limits. That pat-tern should disturb people from across thepolitical spectrum. The criticism expressed inthis study is often harsh, but the evidence isthere as a matter of public record for all fair-minded people to see—and it paints a disturb-ing picture of presidential indifference to con-stitutional safeguards and principles.

The Free Speech Clause

The First Amendment’s command, “Con-gress shall make no law . . . abridging the free-

3

George W. Bushcampaigned onthe sanctity of theoath of office.

dom of speech,” enshrines the principle that“each person should decide for him or herselfthe ideas and beliefs deserving of expression,consideration, and adherence.”10 That princi-ple is a cornerstone of our political system.And it has given rise to a vibrant, dynamic,expressive culture—one that can, as ThomasJefferson acknowledged in his first inauguraladdress, “[wear] an aspect which mightimpose on strangers unused to think freelyand to speak and to write what they think.”11

The American constitutional tradition offree thought and free expression is nowheremore important than when it comes to criti-cizing those in power. For that reason, com-mentators from across the political spectrumhave recognized that at the very core of theFirst Amendment lies the right to criticizeelected officeholders. Unfortunately, PresidentBush has failed to protect that right.

Regulating and Rationing PoliticalSpeech

President Bush’s decision to sign theMcCain-Feingold campaign finance bill is asclear an example of willful violation of the con-stitutional oath of office as one is likely to findwith this president or any other. That is becauseBush first publicly acknowledged his constitu-tional duty to veto the proposed legislationbecause it violated the First Amendment—andthen proceeded to sign it anyway.

In early 2000 Sen. John McCain (R-AZ),then-governor Bush’s principal challengerfor the Republican nomination, was one ofthe driving forces behind a legislative push toeliminate unregulated “soft money” dona-tions to political parties and to severelyrestrict the ability of independent groups torun political advertisements.12 On ABC’s ThisWeek program on the morning of January 23,2000, George Will asked candidate Bush forhis views on such restrictions (having toldhim, prior to the show, that the question wascoming). Governor Bush (1) agreed with Willthat the president has an independent dutyto judge the constitutionality of the legisla-tion he signs, (2) acknowledged that theMcCain-Feingold bill was unconstitutional,

and (3) promised to veto it. Here is an excerptfrom that morning’s show:

George Will: With regard to campaignfinance, your opponent SenatorMcCain has made much of his pledgeto ban soft money. You say that wouldbe bad for the Republican party. I wantto see if you agree with those who say itwould be bad for the First Amend-ment. . . . do you think a president . . .has a duty to make an independentjudgment of what is and is not consti-tutional, and veto bills that, in hisjudgment, he thinks are unconstitu-tional?

Gov. Bush: I do.

George Will: In which case, would youveto the McCain-Feingold bill, or theShays-Meehan bill?

Gov. Bush: That’s an interesting question. . . .yes I would. . . . I think it does . . . restrict freespeech for individuals. . . . I think there’s beentwo versions of it, but as I understand thefirst version restricted individuals and/orgroups from being able to express theiropinion. I’ve always said that I think . . .corporate soft money and labor unionsoft money, which I don’t believe is indi-vidual free speech, this is collective freespeech, ought to be banned. . . . And theother concern of mine is, I think we ought tomake it easier for individuals to participate inthe process. This needs to be a process ofindividuals.13

In the exchange, then-governor Bush alsoexpressed agreement with Justice ClarenceThomas’s statement (put on the televisionscreen by a helpful George Will): “There is noconstitutionally significant difference betweencampaign contributions and expenditures.Both forms of speech are central to the FirstAmendment.”14

Two years later, the McCain-Feingold bill,officially named the Bipartisan Campaign

4

At the very core of the First

Amendment liesthe right to

criticize electedofficeholders.

President Bushhas failed to

protect that right.

Reform Act of 2002, had passed both housesof Congress. And President Bush had changedhis mind—not about the constitutionaldefects of the bill, but about the political mer-its of signing it. Asked at a news conferencewhether he’d hesitate to sign the bill, he wise-cracked: “I won’t hesitate. It will probably takeabout three seconds to get to the W., I may hes-itate on the period, and then rip through the‘Bush.’”15

One might find the president’s muggingfor the cameras cute or infuriating, depend-ing on one’s opinion of the bill, but PresidentBush betrayed quite a bit more hesitation atthe official signing ceremony. Media cover-age of the signing ceremony tended to focuson the fact that President Bush did not inviteSenator McCain to the scene of his legislativetriumph. More interesting, however, was thatPresident Bush acknowledged and concededthe constitutional objections to the bill evenas he signed it. In his official remarks at theceremony, President Bush noted:

Certain provisions present serious con-stitutional concerns. In particular, H.R.2356 goes farther than I originally pro-posed by preventing all individuals, notjust unions and corporations, frommaking donations to political parties inconnection with Federal elections.

I believe individual freedom to par-ticipate in elections should be expand-ed, not diminished; and when individ-ual freedoms are restricted, questionsarise under the First Amendment.

I also have reservations about theconstitutionality of the broad ban onissue advertising, which restrains thespeech of a wide variety of groups onissues of public import in the monthsclosest to an election.

However, in President Bush’s view, theultimate responsibility lay with the judicialbranch: “I expect that the courts will resolvethese legitimate legal questions as appropri-ate under the law.”16 But as President Bushhad acknowledged on This Week two years

earlier, judges are not the only officials whoswear an oath to uphold the Constitution.They are merely the last line of defenseagainst unconstitutional action. And whenthe president abdicates his constitutionalresponsibility, as President Bush did when hesigned a bill he knew to be unconstitutional,there is no guarantee that the courts will actto uphold theirs.

In fact, the Supreme Court did not acceptPresident Bush’s invitation to strike down theoffending portions of BCRA. In December2003, in McConnell v. Federal Election Commission,the Court upheld all the major provisions ofBCRA.17 Among those provisions was the banon individual, “soft money” contributions topolitical parties. That provision, as JusticeAnthony Kennedy noted in his dissent, wouldhave criminalized Ross Perot’s efforts to buildthe Reform Party in the 1990s, sending him tojail for up to five years for giving over $25,000to a national party.18 Such a provision can onlyhave the effect of protecting the establishedduopoly of the Republican and Democraticparties.

And if, as candidate Bush agreed in January2000, there is “no constitutionally significantdifference between campaign contributionsand expenditures” and both are “central to theFirst Amendment,” one wonders why as presi-dent he signed a bill that restricts contribu-tions to political parties. It’s no coincidencethat electoral challengers seeking to boosttheir name recognition through advertise-ments disproportionately benefit from softmoney contributions flowing through nation-al parties and that incumbents are better situ-ated to fund their own speech by raising hardmoney donations.19 As were other provisionsof BCRA, the restrictions on donations topolitical parties were designed to make it moredifficult to fund the sort of speech thatincumbents find offensive—and threateningto their livelihoods.

Also upheld by the Court was whatPresident Bush referred to in his signing state-ment as “the broad ban on issue advertising.”Title II of BCRA is a constitutional abomina-tion, creating a new legal category called “elec-

5

President Bushacknowledgedand conceded theconstitutionalobjections to thebill even as hesigned it.

tioneering communications,” defined as “anybroadcast, cable or satellite communication”that refers to a specific candidate for federaloffice, airs within 60 days of a general election(or 30 days of a primary), and is “targeted tothe relevant electorate.” Prior to BCRA, thoseads could be funded as their sponsors saw fit.Unions, corporations, and nonprofits couldgive any sum they wished to support suchpolitical speech. After BCRA, the funding forsuch advertising had to be done within thestrictures of federal campaign finance law,including its prohibitions and contributionlimits. Unions and corporations—even non-profit corporations—are prohibited fromfunding such advertisements from their gen-eral treasuries. Astoundingly, the law makes ita felony for a nonprofit group like theNational Rifle Association or the Sierra Clubto broadcast an ad within 60 days of an elec-tion that criticizes an elected official by name.The only legal vehicle for that kind of speech isthe heavily regulated Political Action Commit-tee, which can only raise money in limited,“hard money” increments. BCRA thus made itmore difficult to fund such advertising, whichmeans there will be less of such speech—whichis precisely the point.20

How can a regulatory scheme that com-plex—a scheme openly designed to restrictpolitical speech that incumbents find offen-sive—be squared with the First Amendment’sclear command that “Congress shall makeno law . . . abridging the freedom of speech”?It cannot. BCRA is, as Justice Antonin Scalianoted in dissent, “a law that cuts to the heartof what the First Amendment is meant toprotect: the right to criticize the govern-ment.”21 The travesty here is that PresidentBush knew that all along. He signed the billinto law nonetheless. And in doing so, hedeliberately broke his oath to defend theConstitution.

“Free-Speech Zones”The Bush administration has also allowed

restrictions on the rights of Americans to criti-cize the government on the streets of our citiesand towns. In case after case, when President

Bush makes a public appearance, nonviolentprotesters have been harassed by law enforce-ment—either Secret Service agents or localpolice operating at their request—and forcedout of the president’s line of sight, to a desig-nated protest area known as the “free-speechzone.” The free-speech zones are often behindfences or obstructions such as “Greyhound-sized buses” and far out of sight of the mediacovering the affair.22 In one case, the 2004 G-8summit on Sea Island, Georgia, protesters werekept 10 miles away.23 If protesters fail to com-ply with the order to move, they are subject toarrest and prosecution.

“What the Secret Service does,” according toPaul Wolf, an Allegheny County, Pennsylvania,police supervisor involved in planning a presi-dential visit to Pittsburgh in 2002, “is they comein and do a site survey, and say, here’s a placewhere the people can be, and we’d like to haveany protesters be put in a place that is able to besecured.”24 During that presidential visit,retired steelworker Bill Neel was arrested andcharged with disorderly conduct for refusing anorder to move. In an open public area, amidst acrowd of Bush supporters, Neel unfurled ahomemade sign reading “The Bush familymust surely love the poor, they made so manyof us.” When he refused to move to a free-speech zone in a fenced-in baseball field a thirdof a mile away, he was handcuffed and arrestedby local police acting at the behest of the SecretService. The arresting officer testified that hewas instructed by the Secret Service to corral“people that were there making a statementpretty much against the president and hisviews.”25 In St. Charles, Missouri, on November4, 2002, activist Bill Ramsey was arrested bylocal police when he tried to unfurl an anti-Bush sign and refused to leave a crowd of Bushsupporters while Bush was visiting a local air-port. The police “said they’d been ordered to[arrest them] by the Secret Service.” In January2003, on a public street, St. Louis police arrest-ed IT worker Andrew Wimmer for refusing tomove his “Instead of war, invest in people” signto a free-speech zone three blocks away fromthe presidential motorcade route. A womanwith a sign reading “Mr. President, we love you”

6

Nonviolent protesters have

often been forcedinto isolated“free-speech

zones.”

was allowed to remain. According to Wimmer,the police told him that “the Secret Servicewanted protesters in the protest area.”26

Such actions against protestors violate set-tled constitutional principles governing freespeech and public protest. As the SupremeCourt explained in United States v. Grace (1983),a case involving two plaintiffs threatened witharrest for leafleting and picketing on the side-walk in front of the Supreme Court building,“‘[P]ublic places’ historically associated withthe free exercise of expressive activities, such asstreets, sidewalks, and parks, are considered . . .to be ‘public forums.’ In such places, the gov-ernment’s ability to permissibly restrict expres-sive conduct is very limited.” Any restrictionson the time, place, or manner of the speechmust be “content-neutral [and] narrowly tai-lored to serve a significant government inter-est, and leave open ample alternative channelsof communication.”27

When the government action in questiondiscriminates on the basis of viewpoint, it iseven less likely to survive a First Amendmentchallenge. That can be seen in Mahoney v.Babbitt, a 1997 case in which the D.C. CircuitCourt of Appeals prevented a Clinton adminis-tration attempt to bar anti-abortion protestorsfrom the parade route at President Clinton’ssecond inaugural. Though the National ParkService had granted permits to the PresidentialInaugural Committee that would allow themto display banners supportive of the presidentalong the sidewalks of Pennsylvania Avenue,the Park Service denied a permit to a groupprotesting partial-birth abortion and threat-ened group members with arrest if they dis-played signs criticizing the president. Since thegovernment was “attempting to ban, on a view-point-determined basis, First Amendmentactivity from a quintessential public forum,” itsaction could not stand. As Judge DavidSentelle noted, “[T]he government has noauthority to license one side to fight freestyle,while forbidding the other to fight at all.”28

The Secret Service’s pattern and practice ofherding protestors out of sight, while leavingthe president’s supporters unmolested, vio-lates that principle and establishes a worri-

some precedent. Time and again, SecretService agents or those operating at theirbehest have threatened to arrest citizens whoare peacefully protesting on public streets andsidewalks, unless they move to a designated,fenced-in area. That is viewpoint-based dis-crimination against citizens exercising theirrights in public forums—and the governmen-tal interest in protecting the president doesnot come close to justifying that discrimina-tion. It cannot be seriously maintained thatpersons determined to do the president harmare likely to draw attention to themselves bywaving placards criticizing him. Thus, in suchcases, the Secret Service is protecting the pres-ident from political criticism, not physicalharm.

As the Mahoney case shows, the Bushadministration is not the first to attempt toinsulate the president from public protest.29

But that is no excuse for trampling freespeech rights. There is no indication thatPresident Bush has personally ordered theSecret Service to ensure that protestors aretreated differently than supporters. But hehas failed to put a stop to the practice. Thepresident is in daily, direct contact with theSecret Service, and is more than capable ofrectifying an unconstitutional practice thathas received wide public attention. Indeed,that is what his oath requires of him. Byallowing this practice to continue, PresidentBush has failed in his duty to ensure thatthose protecting him also respect the consti-tutional rights of citizens.

Executive Power

The Framers sought an energetic executive,but a law-governed one. The Constitutioninstructs the president to “take Care that theLaws be faithfully executed.”30 And as JusticeHugo Black noted, that clause “refutes theidea that he is to be a lawmaker.”31 Perhapsmost important, they left the decision aboutwhether to go to war to the legislature. JamesMadison described the rationale for that allo-cation of power:

7

The Framerssought an energetic executive, but alaw-governedone.

In no part of the constitution is morewisdom to be found than in the clausewhich confides the question of war orpeace to the legislature, and not to theexecutive department. . . . [T]he trustand the temptation would be too greatfor any one man. . . . In war, a physicalforce is to be created; and it is the exec-utive will, which is to direct it. In war,the public treasuries are to be un-locked; and it is the executive handwhich is to dispense them. In war, thehonors and emoluments of office areto be multiplied; and it is the executivepatronage under which they are to beenjoyed; and it is the executive browthey are to encircle. . . . Hence it hasgrown into an axiom that the executiveis the department of power most dis-tinguished by its propensity to war:hence it is the practice of all states, inproportion as they are free, to disarmthe propensity of its influence.32

True, the Constitution makes the presi-dent “Commander in Chief” of our armedforces, but as Alexander Hamilton noted inFederalist 69, that clause was no source ofwar-making authority:

The President is to be commander-in-chief of the army and navy of the UnitedStates. In this respect his authority wouldbe nominally the same with that of theking of Great Britain, but in substancemuch inferior to it. It would amount tonothing more than the supreme com-mand and direction of the military andnaval forces, as first General and admiralof the Confederacy.33

Generals and admirals have considerablepower, but they do not have the power todecide which countries we go to war with,and they certainly do not have authority tolock up American citizens on American soilfar from the battlefield.

The Bush administration’s view of execu-tive power is quite different. It amounts to

the view that, in time of war, the president isthe law, and no treaty, no statute, no coordi-nate branch of the U.S. government canstand in the president’s way when, by hislights, he is acting to preserve national secu-rity. That is apparent in a series of startlingclaims the administration has made in offi-cial documents and public papers, whichinclude the following:

• presidential power to ignore federalstatutes governing treatment of enemyprisoners—as well as other federal lawsthat impinge on practices the presidentbelieves to be useful in fighting the waron terror;

• unilateral executive authority over ques-tions of war and peace; and

• the power to designate American citizens“enemy combatants” and lock them upwithout charges for the duration of thewar on terror—in other words, perhapsforever.

In a 1977 interview with David Frost,Richard Nixon described his view of the presi-dent’s national security authority, “Well, whenthe President does it, that means it is not ille-gal.”34 In the arguments it has advanced, bothpublicly and privately, for untrammeled exec-utive power, the Bush administration comesperilously close to that view.

The Torture MemosThe Bush administration’s view that the

president, in time of war, is unrestrained bylaw is on display in a series of internal Justiceand Defense Department memoranda writ-ten in 2002 and 2003 and publicly revealed in2004. In those memos, Bush administrationlawyers argued that Congress is powerless tointerfere with the president’s authority toorder torture of enemy prisoners if the presi-dent decides such action will be useful inprosecuting the war on terror.

Much of the public discussion about the“torture memos” has focused on the narrownessof their definition of torture and the question ofwhether the Geneva Convention covers Al

8

In the argumentsit has advanced

for untrammeledexecutive power,

the Bush administration

comes perilouslyclose to the

Nixonian view.

Qaeda and Taliban prisoners. Reasonable peo-ple can debate those issues, but what’s perhapsmost disturbing about the memos is their asser-tion that the president cannot be restrained byvalidly enacted laws.

In 1988 the United States signed theUnited Nations Convention against Torture;in 1994 the Senate ratified that agreement.Later that year, Congress passed legislationimplementing the agreement, making acts oftorture committed under color of law out-side the United States a federal crime. (Acts oftorture committed within the United Stateswere already prohibited by federal law.)35 Butaccording to the Bush administration’sJustice Department, that statute is withouteffect, should the president decide it impedeshis ability to wage war on terror.

According to the memos, prohibiting tortureinfringes on the president’s constitutional poweras commander in chief. As an August 1, 2002,memo puts it, “Congress can no more interferewith the president’s conduct of the interrogationof enemy combatants than it can dictate strate-gic or tactical decisions on the battlefield.”36 Thelegal reasoning employed in the August 2002memo resurfaces in a March 2003 Pentagonmemo prepared for Secretary of Defense DonaldRumsfeld, which holds that “[a]ny effort byCongress to regulate the interrogation of unlaw-ful combatants would violate the Constitution’ssole vesting of the commander-in-chief authorityin the President.”37 Of the Pentagon memo, lawprofessor Michael Froomkin says: “The Consti-tution does not make the President a king. Thismemo does.”38

The Constitution’s text will not supportanything like the doctrine of presidentialabsolutism the administration flirts with inthe torture memos. It gives Congress powersthat bear directly on the issue of military con-duct and war crimes, including the power“To make Rules for the Government andRegulation of the land and naval Forces”39

and the power “To define and punish . . .Offences against the Law of Nations”40—suchas violations of international covenantsagainst torture. And the president, in addi-tion to his oath to uphold the Constitution,

is commanded by that document to “takeCare that the Laws be faithfully executed.”41

It’s hard to divine anything in the adminis-tration’s legal reasoning that would prohibitthe seizure and torture of an American citizenon American soil, if the president concludedsuch action would be useful in fighting theWar on Terror. After all, administration offi-cials have argued repeatedly that the UnitedStates is as much a combat zone in that war asare the hills of Afghanistan. During oral argu-ment in the Padilla case, Judge Luttig toldDeputy Solicitor General Paul Clement thataccusations that Padilla was an enemy combat-ant “don’t get you very far, unless you’re pre-pared to boldly say the United States is a bat-tlefield in the war on terror.” Clement replied,“I can say that, and I can say it boldly.”42

In response to public pressure, on Decem-ber 30, 2004, the Justice Department’s Officeof Legal Counsel issued a memorandumsuperseding the August 2002 memo that gen-erated much of the controversy. While repudi-ating the practice of torture, OLC did notrecant its broad assertion of executive authori-ty.43 Indeed, given the president’s actions withregard to the recent congressional effort toprohibit “cruel, inhuman, and degrading”treatment of U.S. detainees, that theory of exec-utive power appears to be alive and well. InDecember 2005, after long threatening to vetothe measure, President Bush, faced with veto-proof majorities in the House and Senate,decided to sign. Yet, in his signing statement,he declared, “The executive branch shall con-strue Title X in Division A of the Act, relatingto detainees, in a manner consistent with theconstitutional authority of the President tosupervise the unitary executive branch and asCommander in Chief and consistent with theconstitutional limitations on the judicialpower.”44 Given the president’s capacious viewof his own authority, that could well signal theintent to ignore the law when he believes it nec-essary.45

Moreover, instead of penalizing any of thefigures responsible for the torture memos,the president has promoted them. Jay S.Bybee, coauthor of the August 2002 memo, is

9

TheConstitution’stext will not support anythinglike the doctrineof presidentialabsolutism theadministrationflirts with in thetorture memos.

now a federal judge on the Ninth CircuitCourt of Appeals. Alberto Gonzales, who ranthe Office of Legal Counsel during its elabo-rate effort to bypass inconvenient lawspassed by Congress, is now the nation’s chieflaw enforcement officer, as attorney generalof the United States.

Presidential War PowersAs revealed by the torture memos, then, in

the administration’s theory, Congress is pow-erless to prevent the president from doingwhatever he believes to be necessary to win awar. And, as it turns out, Congress is also pow-erless to prevent the president from starting awar, if he believes that war is in the nationalinterest. Administration officials have repeat-edly advanced the claim that the president’spowers include the power to decide, unilater-ally, the question of war or peace.

In official Justice Department testimonygiven before the Senate Subcommittee on theConstitution in April 2002, John Yoo of theOffice of Legal Counsel expressed the admin-istration’s view: “The President has the con-stitutional authority to introduce the U.S.Armed Forces into hostilities when appropri-ate, with or without specific congressionalauthorization.”46 In an internal memoran-dum prepared shortly after September 11,2001, Yoo put it even more starkly: “In theexercise of his plenary power to use militaryforce, the President’s decisions are for himalone and are unreviewable.”47 That is consis-tent with Vice President Cheney’s long-heldview of the president’s powers and consistentwith what administration figures were tellingthe press in the run-up to the congressionaldebate over war with Iraq.48

But the administration also had a fallbacktheory: the president didn’t need congression-al authorization for this war with Iraq, becausea previous president (George W. Bush’s father)had secured authorization for the previous warwith Iraq 11 years earlier. Then–White Housecounsel Alberto Gonzales argued that the1991 congressional resolution for the PersianGulf War, drafted to authorize expulsion ofIraqi forces from Kuwait, still had enough life

left in it to authorize a new war aimed atregime change in Iraq.49

In fairness, the administration did eventu-ally secure a use-of-force resolution fromCongress, all the while denying any authoriza-tion was needed. But taken in conjunctionwith the theory of presidential power articu-lated in the torture memos, the administra-tion’s legal position can be summed up stark-ly: When we’re at war, anything goes, and thepresident gets to decide when we’re at war.

The administration has argued repeatedlythat Congress authorized a host of new pow-ers for the president when it passed theAuthorization for Use of Military Force inResponse to the 9/11 Attacks in September2001.50 Among those powers, as discussedbelow, are the ability to detain American citi-zens without charges or trial and the abilityto wiretap American citizens outside thestatutory framework set up by Congress. Butthe argument from congressional authoriza-tion appears disingenuous when viewed inthe light of the administration’s broad viewof its own war powers. If, in the administra-tion’s legal theory, the new powers claimedare incidents of war, and if the president canunilaterally take the nation into war, whatcan congressional authorization possibly addto the vast powers the president already has?

Unreasonable Searches and Seizures

The Fourth Amendment to the Constitutionprovides, “The right of the people to be secure intheir persons, houses, papers, and effects, againstunreasonable searches and seizures shall not beviolated, and no Warrants shall issue, but uponprobable cause, supported by Oath or affirma-tion, and particularly describing the place to besearched, and the persons or things to be seized.”The Bush administration has repeatedly soughtto weaken the Fourth Amendment’s limits onthe government’s power to arrest and search per-sons. Bush and his lawyers profess to adhere tothe Constitution, but their actions belie theirwords.

10

The administration’s

legal position canbe summed upstarkly: When

we’re at war, anything goes,

and the presidentgets to decide

when we’re at war.

Expanding the Power to ArrestThe arrest of a person is the quintessential

“seizure” under the Fourth Amendment. Inmany countries around the world, policeagents can arrest people whenever theychoose, but in America the Fourth Amend-ment shields the people from overzealousgovernment agents by placing some limits onthe powers of the police. The primary “check”is the warrant application process. Thatprocess requires police to apply for arrestwarrants, allowing for impartial judges toexercise some independent judgment withrespect to whether sufficient evidence hasbeen gathered to meet the “probable cause”standard set forth in the Fourth Amend-ment.51 When officers take a person into cus-tody without an arrest warrant, the prisonermust be brought before a magistrate within48 hours so that an impartial judicial officercan scrutinize the conduct of the police agentand release anyone who was illegally deprivedof his or her liberty.52

President Bush and his subordinates haveundermined the Fourth Amendment’s protec-tions in three distinct ways. First, PresidentBush has asserted the authority to exclude thejudiciary from the warrant application processby issuing his own arrest warrants. Accordingto the controversial “military order” that Bushissued in November 2001, once the presidentdetermines that there is “reason to believe”that a noncitizen is connected to terroristactivity and that his or her detention is “in theinterest of the United States,” federal policeagents “shall” detain that person “at an appro-priate location designated by the secretary ofdefense outside or within the United States.”53

According to the order, the person arrestedcannot get into a court of law to challenge thelegality of the arrest.54 The prisoner can onlyfile appeals with the official who ordered hisarrest in the first instance, namely, the presi-dent. The U.S. military can take prisoners intocustody in a war zone, but this order is notlimited to persons in overseas war zones. Thepresident’ attempt to assert such authorityover persons on American soil is astonishingbecause the whole purpose of the Fourth

Amendment is to make such a procedureimpossible in America.

Some observers have defended the constitu-tionality of that presidential order because itapplies only to noncitizens. Although thatargument may have some surface appeal, it can-not withstand scrutiny. It should be noted thatwhile some provisions of the Constitutionemploy the term “citizens,” other provisionsemploy the term “persons.” Thus, it is safe tosay that when the Framers of the Constitutionwanted to use the narrow or broad classifica-tion, they did so. The Supreme Court hasalways affirmed this plain reading of the consti-tutional text.55

Second, President Bush and the FBI havetried to dilute the “probable cause” standard forcitizens and noncitizens alike. The SupremeCourt has noted time and again that a personcannot be hauled out of his home on the meresuspicion of police agents—since that wouldput the liberty of every individual in the handsof any petty official.56 But in the days and weeksfollowing September 11, the FBI arrested hun-dreds of people and euphemistically referred tothe group as “detainees.”57

Many of those arrests were perfectly law-ful, but it is also clear that many were not.The FBI has tried to justify dozens of arrestswith the following argument:

The business of counterterrorism intel-ligence gathering in the United States isakin to the construction of a mosaic. Atthis stage of the investigation, the FBI isgathering and processing thousands ofbits and pieces of information that mayseem innocuous at first glance. Wemust analyze all that information, how-ever, to see if it can be fit into a picturethat will reveal how the unseen wholeoperates. . . . What may seem trivial tosome may appear of great moment tothose within the FBI or the intelligencecommunity who have a broader con-text.58

At bottom, this is an attempt to effect whatJudge Richard Posner, in another context,

11

President Bushhas asserted theauthority toexclude the judiciary fromthe warrantapplicationprocess by issuing his ownarrest warrants.

has aptly called “imprisonment on suspicionwhile the police look for evidence to confirmtheir suspicion.”59

Third, federal agents misused an obscurefederal statute, the material witness law, todetain suspects without having to chargethem with a crime.60 The material witness lawis designed to secure a potential witness’s tes-timony so that it will not be lost in situationswhere the individual witness seems likely toignore a summons and flee the jurisdiction.61

In the months following the September 11attacks, federal agents used the law to incar-cerate suspects, not witnesses. By “evading therequirement of probable cause of criminalconduct, the government bypassed checks onthe reasonableness of its suspicion.”62

The Supreme Court has repeatedlyrebuffed police and prosecutorial attemptsto dilute the constitutional standard of prob-able cause, but President Bush and hislawyers keep trying to expand the power ofexecutive agents.63

Expanding the Power to Seize PrivateProperty

The Fourth Amendment does not ban allgovernmental efforts to search and seize pri-vate property, but it does limit the power ofthe police to seize whatever they want, when-ever they want. The warrant applicationprocess is the primary check on the power ofthe executive branch to intrude into people’shomes and to seize property. If the police canpersuade an impartial judge to issue a searchwarrant, the warrant will be executed.However, if the judge is unpersuaded, he willreject the application and no search will takeplace. In the event of a rejection, the policecan either drop the case or continue theinvestigation, bolster their application withadditional evidence, and reapply for a war-rant. The Bush administration has tried toexpand the power of the executive branch byundermining and bypassing this constitu-tional framework.64

Section 215 of the Patriot Act created anew subpoena-like power that enables thepolice to seize private property. Bush admin-

istration officials said that provision was nocause for concern because (a) it was onlyabout “business records,” (b) a federal judgehad to approve everything, and (c) grand jurysubpoenas basically perform the same pur-pose already. Those claims were very mislead-ing. First, section 215 is titled “businessrecords,” but it actually covers any “tangible”thing. Thus, section 215 can be used to seizemedical records from doctors, educationalrecords from schools, and records fromlibraries and bookstores. Indeed, section 215can be used to seize personal belongings fromsomeone’s home. Second, there is only afaçade of judicial review. Unlike the searchwarrant application process, the Patriot Act iswritten in such a way as to mandate approvalby the judiciary. So long as the FBI certifiesthat it is engaged in a terrorism investigation,the judge must grant or modify the order.65

Third, citizens can exercise their free speechrights concerning grand jury subpoenas andcan challenge those subpoenas in court. Butthe Patriot Act makes it a crime for anyone todisclose the existence of the section 215order.66 In testimony before the Senate Judici-ary Committee, former representative BobBarr (R-GA) observed, “Critics of this section[215] rightly charge that its open-ended scopeand lack of meaningful judicial review openthe door to abuses, and I agree.”67

The Bush administration has also champi-oned the use of “national security letters”(NSLs). An NSL is another subpoena-likedevice that empowers federal agents todemand certain records from businesspeople.Unlike search warrants, executive branchagents do not need to apply to judges for thesedevices. These letters also threaten citizenswith jail should they tell anyone about thegovernment’s demand. When a constitutionalchallenge was brought against NSLs, Bush’slawyers argued that they were fully consistentwith the Bill of Rights. The federal court wasnot persuaded. Federal Judge Victor Maerreroruled that NSLs violated both the FourthAmendment and the First Amendment.68

NSLs violate the Fourth Amendment becausethey are written “in tones sounding virtually as

12

Federal JudgeVictor Maerrero

ruled that national security

letters violatedboth the Fourth

Amendment andthe First

Amendment.

biblical commandments,” thus making it“highly unlikely that an NSL recipient reason-ably would know that he may have a right tocontest the NSL, and that a process to do somay exist through a judicial proceeding.”69

NSLs violate the First Amendment becausethey “operate as an unconstitutional priorrestraint on speech.”70

Expanding the Power to EavesdropThe Supreme Court has recognized that

electronic surveillance, such as wiretappingand eavesdropping, impinges on the privacyrights of individuals and organizations and istherefore subject to the Fourth Amendment’swarrant clause.71 President Bush claims thathe can bypass the warrant application processand surveil the e-mail and phone conversa-tions of Americans because he is the comman-der in chief of the U.S. military.72

In December 2005 the New York Times brokea story about an eavesdropping program con-ducted by the National Security Agency.73

Shortly after the September 11 terroristattacks, President Bush ordered the NSA toeavesdrop on Americans inside the UnitedStates to search for terrorist activity. Trying todetect the presence of terrorists inside theUnited States is, of course, a valid and impor-tant objective, but President Bush authorizedthe NSA to eavesdrop on Americans withoutthe court-approved warrants that are ordinari-ly required for domestic spying. After the exis-tence of this program was revealed, Bush madeit plain that he would decide for himselfwhether to follow the Foreign IntelligenceSurveillance Act and seek a warrant—or not.74

President Bush’s claim that he has the“inherent” power as commander in chief toorder the secret surveillance of internationale-mail and telephone conversations of per-sons within the United States raises a host ofdisturbing questions. For example, if the pres-ident can surveil international calls without awarrant, can he (or his successor) issue asecret executive order to intercept purelydomestic communications as well? Can thepresident order secret warrantless searches ofAmerican homes whenever he deems it appro-

priate? Attorney General Alberto Gonzaleshas indicated that the president can ordersecret searches of American homes becausePresident Bill Clinton deemed such break-ins“legal,” as if that would bolster the validity ofhis claim.75

Indeed, the president’s lawyers have al-ready informed the federal judiciary that theyregard the entire world, including every inchof U.S. territory, a “battlefield.”76 That out-landish claim has profound implications forthe Bill of Rights because there are no legalrights whatsoever on the battlefield. Presi-dent Bush has delivered many speeches inwhich he has told audiences that he wants touse every “legal” means at his disposal so thathe can “protect the country.” That is whatmost Americans want to hear and believe.Unfortunately, the president appears tobelieve that he is the ultimate arbiter of whatis legal and what is illegal—at least in mattersrelating to national security. By twisting andredefining the term “battlefield,” the presi-dent seems prepared to override any law thathinders federal police agents, federal intelli-gence agents, or military personnel. Bushtrusts himself to do the right thing, but hedoes not seem to appreciate the fact that theprecedents he is attempting to establish willnot expire when he leaves the White House.Those precedents will open the door to abus-es by future presidents in the years to come.Instead of fortifying the legal safeguards thatprotect the liberties of the American people,President Bush has weakened those safe-guards considerably. Despite his protesta-tions to the contrary, the president’s actionsexhibit a profound disrespect for the Consti-tution and the rule of law.

The “Great Writ” of Habeas Corpus

The most important constitutional issuethat has arisen since the September 11 terror-ist attacks has been President Bush’s claimthat he can arrest any person in the world andhold that person incommunicado indefinite-

13

The presidentappears to believethat he is the ultimate arbiterof what is legaland what is illegal—at least inmatters relatingto national security.

ly. According to the legal papers that Bush’sattorneys have filed in the courts, so long as hehas issued an “enemy combatant” order to hissecretary of defense instead of the attorneygeneral, it does not matter if the prisoner is aforeign national or an American citizen.77 Andit does not matter if the prisoner was appre-hended in Afghanistan or in some sleepy townin the American heartland. Under this sweep-ing theory of executive power, the liberty ofevery American rests on nothing more thanthe grace of the White House.78

To fully appreciate the implications of theadministration’s “enemy combatant” argu-ment, one must first consider the constitu-tional procedure of habeas corpus. TheConstitution provides: “The Privilege of theWrit of Habeas Corpus shall not be suspend-ed, unless when in Cases of Rebellion orInvasion the public Safety may require it.”Since that provision appears in Article I ofthe Constitution, which sets forth the powersof the legislature, the implication is clear:Congress has the responsibility to decidewhether or not the writ ought to be suspend-ed. Notably, the Bush administration has noturged the Congress to suspend habeas cor-pus. Nor has President Bush asserted theclaim that he can suspend the writ unilater-ally. Bush’s lawyers have instead tried to alterthe way in which the writ operates when it isnot suspended.

By way of background, the writ of habeascorpus is a venerable legal procedure thatallows a prisoner to get a hearing before animpartial judge. If the jailor is able to supply avalid basis for the arrest and imprisonment atthe hearing, the judge will simply order theprisoner to be returned to jail. But if the judgediscovers that the imprisonment is illegal, hehas the power to set the prisoner free. For thatreason, the Founders routinely referred tothis legal device as the “Great Writ” because itwas considered one of the great safeguards ofindividual liberty.79

The Bush administration’s assault on theGreat Writ was indirect but very real. It arosewhen a man challenged the legality of hisimprisonment. Yaser Hamdi was initially

captured in Afghanistan and was then trans-ferred to the prison facility at GuantanamoBay in Cuba. When the military authoritiesdiscovered that Hamdi was an American citi-zen, he was moved to a military brig in SouthCarolina. Because Hamdi was denied accessto family and legal counsel, his father filed awrit of habeas corpus on his behalf in federalcourt. The Bush administration could havesimply explained to the court its reasons forjailing Hamdi—that Hamdi was captured onan overseas battlefield—but it chose torespond to that petition by urging the dis-trict court to summarily dismiss the petitionbecause, it argued, the court could not “sec-ond-guess” the president’s “enemy combat-ant” determination.80 That assertion struckat the heart of habeas corpus. If the judiciarycould not “second-guess” the executive’s ini-tial decision to imprison a citizen, the writnever would have acquired its longstandingreputation in the law as the Great Writ.81

If Congress has not suspended the writ ofhabeas corpus, the law is clear. The prisonermust be able to meet with his attorney inorder to adequately prepare for their “day incourt.”82 That day is significant because itmay be the prisoner’s only opportunity topersuade a judge that a mistake has beenmade or that an abuse has occurred. Presi-dent Bush’s attorneys tried to advance theastonishing notion that habeas corpus peti-tions could be filed—as long as they were allimmediately thrown out of court. Bush’sattorneys failed to persuade the SupremeCourt that his “enemy combatant” policywas lawful.83 Writing for the Court, JusticeSandra Day O’Connor noted, “We have longsince made clear that a state of war is not ablank check for the President when it comesto the rights of the Nation’s citizens.”84

Justice Antonin Scalia recognized that eventhough the president and his lawyers werewell-intentioned, their legal arguments wereprofoundly misguided: “The very core of lib-erty secured by our Anglo-Saxon system ofseparated powers has been freedom fromindefinite imprisonment at the will of theExecutive.”85

14

Under this sweeping theory

of executivepower, the liberty

of every Americanrests on nothing

more than thegrace of the White

House.

Some conservative writers tried to down-play the significance of the president’s stanceby arguing that “only” a few Americans havebeen imprisoned on the “enemy combatant”theory.86 That argument misses the pointcompletely. The American legal system isbased on precedent. If the Bush administra-tion is successful in claiming that it canimprison just one American citizen anddeprive that person of habeas corpus protec-tion, that precedent could be used againstscores of citizens thereafter, whether by thepresent president or his successors.87 It is forthat reason that Bush’s attempt to under-mine “the very core of our liberty” may be hismost egregious failure to protect and defendour Constitution.

Trial by Jury

Article III, section 2, of the Constitutionprovides, “The Trial of all Crimes, except inCases of Impeachment; shall be by Jury.” TheSixth Amendment to the Constitution pro-vides, “In all criminal prosecutions, theaccused shall enjoy the right to a speedy andpublic trial, by an impartial jury.” To limit theawesome powers of government, the Framersof the Constitution designed a system inwhich citizen juries stand between the appa-ratus of the state and the accused. If the gov-ernment prosecutor can convince a jury thatthe accused has committed a crime andbelongs in prison, the accused will lose hisliberty and perhaps his life. If the governmentcannot convince the jury with its evidence,the prisoner will go free. In America, anacquittal by a jury is final and is not review-able by state functionaries.88

President Bush has tried to deny the benefitof trial by jury to noncitizens accused of terror-ist activities on U.S. soil. The president’sNovember 2001 Military Order proclaimed hisauthority to decide who can be tried before ajury and who can be tried before a military com-mission.89 Some conservative legal scholarshave argued that Bush’s military order did notgo far enough. They have urged him to revise

and extend his military order to American citi-zens as well.90

The federal government did try peoplebefore military commissions during the CivilWar. To facilitate that process, PresidentLincoln suspended the writ of habeas corpus—so that the prisoners could not challenge thelegality of their arrest or conviction in a civiliancourt.91 The one case that did reach theSupreme Court, Ex Parte Milligan (1866),deserves careful attention.92

In Milligan, the attorney general of theUnited States, James Speed, maintained thatthe legal guarantees set forth in the Bill ofRights were “peace provisions.” During war-time, he argued, the federal government cansuspend the Bill of Rights and impose martiallaw. If the government chooses to exercise thatoption, the commanding military officerbecomes “the supreme legislator, supremejudge, and supreme executive.”93 Under thatlegal theory, many American citizens werearrested, imprisoned, and executed withoutthe benefit of the legal mode of procedure setforth in the Constitution—trial by jury.

The Supreme Court ultimately rejected thelegal position advanced by Attorney GeneralSpeed. Here is a key passage from the Milliganruling:

The great minds of the country have dif-fered on the correct interpretation to begiven to various provisions of theFederal Constitution; and judicial deci-sion has been often invoked to settletheir true meaning; but until recentlyno one ever doubted that the right totrial by jury was fortified in the organiclaw against the power of attack. It is nowassailed; but if ideas can be expressed inwords and language has any meaning,this right—one of the most valuable in afree country—is preserved to every oneaccused of crime who is not attached tothe army, or navy, or militia in actualservice. The sixth amendment affirmsthat “in all criminal prosecutions theaccused shall enjoy the right to speedyand public trial by an impartial jury,”

15

Bush’s attempt to undermine“the very core ofour liberty” maybe his most egregious failureto protect anddefend ourConstitution.

language broad enough to embrace allpersons and cases.94

The Milligan ruling is sound. Although theConstitution empowers Congress “To makeRules for the Government and Regulation ofthe land and naval Forces” and “To providefor organizing, arming, and disciplining, theMilitia,” the Supreme Court ruled that thejurisdiction of the military courts could notextend beyond those people who were actual-ly serving in the army, navy, and militia. Thatis an eminently sensible reading of the con-stitutional text.95

President Bush and his lawyers say that ter-rorists are “enemy combatants” and thatenemy combatants are not entitled to the pro-tections of the Bill of Rights. The defect in thepresident’s claim is circularity. A primary func-tion of the trial process is to sort through con-flicting evidence in order to find the truth.Anyone who assumes that a person who hasmerely been accused of being an unlawfulcombatant is, in fact, an enemy combatant,can understandably maintain that such a per-son is not entitled to the protection of ourconstitutional safeguards. The flaw, however,is that that argument begs the very questionunder consideration.

To take a concrete example, suppose thatthe president accuses a lawful permanent res-ident of the United States of aiding and abet-ting terrorism. The person accused respondsby denying the charge and by insisting on atrial by jury so that he can establish his inno-cence. The president responds by saying that“terrorists are unlawful combatants andunlawful combatants are not entitled to jurytrials.” The president also says that the pris-oner is not entitled to any access to the civil-ian court system to allege any violations ofhis constitutional rights.96 With the writ ofhabeas corpus denied, the prisoner and hisattorney can only file legal appeals with thepresident—the very person who ordered theprisoner’s arrest in the first instance.

The Constitution’s jury trial clause is not a“peace provision” that can be overridden dur-ing wartime.97 Reasonable people can argue

about how to prosecute war criminals who arecaptured overseas in a theater of war, but thepresident cannot make himself the policeman,prosecutor, and judge over people on U.S. soil.In America, the president’s power is checkedby the judiciary and by citizen juries.98

When considering the legal changes theadministration has sought to impose in thename of the war on terror, it is vitally impor-tant to consider the nature of that war. Theadministration has taken to calling it “TheLong War.” Unlike other wars, this one will notend with a peace treaty signed at a diplomat’stable. It will take decades, and when victory isachieved, we may not know with any certaintythat we’ve won. Thus, the extraconstitutionalpowers we tolerate now will be available for allfuture presidents, scrupulous or otherwise.And our entire constitutional system repudi-ates the notion that electing good men is a suf-ficient check on abuse of power.

Constitutional Federalism

The “first principle” of American constitu-tionalism, as noted by the Supreme Court inthe landmark case of United States v. Lopez(1995), is that the federal government is one ofenumerated, and thus limited, powers.99 TheConstitution does not confer on the U.S. gov-ernment a general police power, allowing it tolegislate on all matters affecting the health,safety, and welfare of the American people.Instead, as James Madison noted in Federalistno. 45: “The powers delegated by the proposedConstitution to the federal government arefew and defined. Those which are to remain inthe State governments are numerous andindefinite.”100 Most of the federal govern-ment’s delegated powers are specifically setforth in Article I, section 8, of the Constitu-tion. And the Tenth Amendment underscoresthe principle of limited, enumerated powers,making it clear that the powers not delegatedto the federal government “are reserved to theStates respectively, or to the people.”

The genius of American federalism—in itsoriginal design, at least—is dual sovereignty.

16

Our entire constitutional

system repudiatesthe notion that

electing good menis a sufficient

check on abuse ofpower.

The states and the federal government areeach supreme in their respective spheres,with the states retaining broad control overtheir internal affairs. As Alexander Hamiltonput it in Federalist no. 17, the “one transcen-dent advantage belonging to the province ofthe State governments” was that “the ordi-nary administration of criminal and civil jus-tice” remained with the states.101

At its best, this system of dual sovereignty isneither conservative nor liberal; it allows forenormous diversity and choice. It allows thestates, in Justice Louis D. Brandeis’s phrase, toserve as “laboratories of democracy,” whilealso allowing those who object to particularexperiments an easier path of escape, throughthe ability to exit. It enhances the politicalpower of individual citizens by allowingimportant decisions of governance to be set-tled closest to where Americans live and work.And it avoids making politics a centralized warof all against all, where each contested moralissue is settled in a one-size-fits-all fashion atthe level furthest from the people.

Early on in his administration, PresidentBush professed to recognize the virtues ofour federalist system, and to celebrate them.In a speech before the National Governors’Association in February 2001, he declared:

Let me make this pledge to you all. I’mgoing to make respect for federalism apriority in this administration. Respectfor federalism begins with an under-standing of its philosophy. The framersof the Constitution did not believe in anall-knowing, all-powerful federal govern-ment. They believed that our freedom isbest preserved when power is dispersed.That is why they limited and enumerat-ed the federal government’s powers, andreserved the remaining functions of gov-ernment to the states.102

Yet far from making “respect for federalisma priority” in his administration, PresidentBush has broken that pledge repeatedly. Sixyears into his tenure in office, the president’srecord on federalism is depressingly clear. It is

one of consistent disdain for the constitution-al role of the states and for limits on federalpower.

Limitless Federal PowerPresident Bush took office at a key moment

in the history of American federalism. In May2000 the Supreme Court had decided UnitedStates v. Morrison, striking down provisions ofthe Violence Against Women Act that allowedvictims of gender-motivated violence to bringsuit in federal court.103 The Court held thatVAWA was improperly directed toward intra-state crime and beyond the scope of Congress’spower to “regulate Commerce . . . among theseveral States.”

Morrison continued what the RehnquistCourt had started in 1995’s United States v. Lopez,where the Court, for the first time in 60 years,struck down a federal law on the grounds that itwas beyond the scope of Congress’s commercepower. Lopez involved a 12th-grade student inSan Antonio, Texas, Alphonso Lopez, who wasdiscovered carrying a handgun at school. He wasarrested under a Texas law prohibiting the pos-session of firearms on school premises, but fed-eral agents soon took over the case, chargingLopez with violating the federal Gun-FreeSchool Zones Act of 1990. Although the actmade no reference to any enumerated power ofCongress, the Clinton administration defendedthe law on Commerce Clause grounds, arguingthat gun possession in schools could lead to vio-lent crime and disrupt the learning process,which could in turn impact the interstate econ-omy. At oral argument, Solicitor General DrewDays forthrightly admitted that, under thisrationale, there were no limits to Congress’spower to pass criminal laws under theCommerce power. The justices pressed him onthis point: “[So] there is no question thatCongress has the power, in effect, to take overcrime, because I . . . presume there’s no limita-tion on your rationale, or on Congress’ ration-ale, that would preclude it from reaching anytraditional criminal activity?” Days responded,“That’s correct.”104

The Court recoiled from that sweepingclaim and, in a majority opinion by Chief

17

In February 2001,Bush declared,“I’m going tomake respect forfederalism a priority in thisadministration.”

Justice Rehnquist, noted:

To uphold the Government’s con-tentions here, we would have to pileinference upon inference in a mannerthat would bid fair to convert congres-sional authority under the CommerceClause to a general police power of thesort retained by the States. . . . To do sowould require us to conclude that theConstitution’s enumeration of powersdoes not presuppose something notenumerated and that there never willbe a distinction between what is trulynational and what is truly local. Thiswe are unwilling to do.105

After Lopez, and with the election of GeorgeW. Bush, long-suffering constitutionalistshad reason to hope that the distinctionbetween what is truly national and what istruly local would be preserved and extendedunder a president who had named ClarenceThomas as one of his favorite justices. But itwas not to be. Instead, the Bush administra-tion seems determined to stop the “federal-ism revolution” begun by the RehnquistCourt.

Nowhere is that clearer than in the case ofGonzales v. Raich.106 The Raich case involved twowomen suffering great physical pain, who haddecided to ingest medicinal marijuana on theadvice of their doctors and with the approval oftheir state government, under California’sCompassionate Use Act, passed by ballot initia-tive in 1996. After federal agents destroyedCalifornia resident Diana Monson’s cannabisplants in August 2002 (despite being informedby local police that the plants were legal underthe Compassionate Use Act), Monson andAngel Raich, a California woman suffering froman inoperable brain tumor, brought suit.107

Citing Lopez and Morrison, Raich and Monsonargued that the federal Controlled SubstancesAct could not constitutionally be applied tothem because their activity, ingestion of home-grown medical marijuana, was not interstatecommerce and had no substantial effect oninterstate commerce.

Whatever one’s view of the War on Drugs,a ruling for Raich and Monson would havepresented no serious threat to the federal gov-ernment’s ability to proscribe interstate com-merce in narcotics. Nothing remotely resem-bling a commercial transaction was at issuehere. No cannabis crossed state lines. Nonewas sold. The behavior at issue was entirelylegal under state law, under the careful licens-ing scheme set out in the Compassionate UseAct. Nonetheless, the Bush administrationfought hard to retain the right to prosecutemedical marijuana patients and providers—all in the name of interstate commerce. And itsucceeded. On June 6, 2005, the Court heldthat the federal power to regulate interstatecommerce was broad enough to prohibitnoncommercial cultivation and use of mari-juana entirely within one state. As JusticeThomas noted in dissent, “If Congress canregulate this under the Commerce Clause,then it can regulate virtually anything—andthe Federal Government is no longer one oflimited and enumerated powers.”108

Disrespect for the StatesThe administration wasted little time

putting the Raich precedent to use. Less thanthree weeks after the decision was handeddown, federal agents carried out one of thelargest Bay Area drug enforcement actions inyears, raiding three San Francisco medicalmarijuana dispensaries and arresting 15 peo-ple for drug trafficking. Javier Pena, headagent at the U.S. Drug Enforcement Admini-stration’s San Francisco office, declared: “TheSupreme Court reiterates that we have thepower to enforce the federal drug laws—even ifthey are not popular. We’re going to continueto do that.”109

In so doing, the Bush administration is atodds with 11 states that have decided,through the democratic process, to licensethe use of marijuana for medicinal purposes.That behavior is of a piece with the adminis-tration’s actions with regard to Oregon’sDeath with Dignity Act.

In 1994 Oregon voters passed that act viaballot initiative, voting to allow doctors to

18

The Bush administration

seems determinedto stop the

“federalism revolution”

begun by theRehnquist Court.

prescribe lethal doses of medication to termi-nally ill patients who choose to hasten the in-evitable. The Death with Dignity Act tookeffect in 1997, after it survived several legalchallenges, and the voters of Oregon reaf-firmed the law, by rejecting a ballot initiativeto repeal it. Members of Congress, includingthen-senator John Ashcroft, called on then—attorney general Janet Reno to declare thatthe act violated federal drug laws, but sherefused. On November 9, 2001, newly ap-pointed attorney general John Ashcroftreversed that decision, with a directive declar-ing that physician-assisted suicide served no“legitimate medical purpose” and violated thefederal Controlled Substances Act, and thatphysicians participating in the system theOregon act sets up would face revocation oftheir federal registration permitting them toprescribe medication.

On January 17, 2006, the Supreme Courtheld that Attorney General Ashcroft hadexceeded his authority under the ControlledSubstances Act. Writing for the Court, JusticeAnthony Kennedy chastised the administra-tion for its overbroad interpretation of itsown authority:

The Government, in the end, maintainsthat the prescription requirement dele-gates to a single Executive officer thepower to effect a radical shift of author-ity from the States to the FederalGovernment to define general stan-dards of medical practice in every locali-ty. The text and structure of the CSAshow that Congress did not have thisfar-reaching intent to alter the federal-state balance and the congressional rolein maintaining it.110

As George Mason University law professorNelson Lund noted, one need not agree withthe decision of the people of Oregon to allowphysician-assisted suicide to recognize thatthe ends do not justify means that overridefederalism: “Although I support the goal ofdiscouraging physician-assisted suicide, Ialso believe that Ashcroft is pursuing that

goal in a way that may undermine a funda-mental constitutional principle.”111

When it comes to end-of-life issues, though,President Bush is unwilling to show that prin-ciple any deference. In the Oregon case, theBush administration reversed the decision ofthe Oregon electorate to allow doctors to assistterminally ill patients who wish to end theirlives. In the Terri Schiavo case, the presidentand his party overruled the considered judg-ment of the Florida courts, after seven years ofexhaustive litigation, that a severely brain-dam-aged woman would have wanted her feedingtube removed. In February 2000, the Floridatrial court ruled that Schiavo had expressed herwishes not to be kept alive in a severely dimin-ished state, and that determination had beenreviewed and allowed to stand by a Floridaappellate court and the Florida SupremeCourt. By mid-March 2005, some five yearsafter the first Florida court order to withdrawlife support, more than 20 federal and statecourt rulings had sided with Terri Schiavo’slegal guardian, her husband Michael.

When Schiavo’s feeding tube was removedon March 18, 2005, Congress went into emer-gency session and drafted a law aimed at over-turning those decisions and reopening thecase for de novo review in the federal courts.On March 21, President Bush signed the law—a law that in bill-of-attainder fashion wasaimed at a single party and arguably interferedwith that party’s constitutional right to refuseunwanted medical treatment.112 The billshowed utter disrespect for state legal process-es and the competence of state courts to han-dle matters with which the Constitutionentrusts them. Douglas Kmiec, law professorat Pepperdine University and an ardent oppo-nent of abortion, rightly called the Schiavo law“a constitutional abomination.”113

Is Anything to Be “Reserved to the States . . .or to the People”?

The Schiavo case was no anomaly. Through-out his tenure, President Bush has repeatedlyintruded into areas constitutionally reserved tothe states. Rejecting the limitless theory of federalpower offered by Clinton administration lawyers

19

Douglas Kmiec,law professor atPepperdineUniversity and anardent opponentof abortion,rightly called theSchiavo law “aconstitutionalabomination.”

in United States v. Lopez, Chief Justice Rehnquistoffered a reductio ad absurdum: if the federal gov-ernment could directly regulate any activity relat-ed to the productivity of U.S. citizens, then whatcould stop it from meddling in areas “whereStates historically have been sovereign,” such ascriminal law, education, and family law?114 Andyet, with a series of projects ranging from small-bore, Clintonian microinitiatives to large-scalefederal programs, President Bush has expandedfederal involvement in each of those areas, some-times dramatically.

Criminal Law. Lopez and Morrison emphaticallyrejected the idea of a federal police power; theBush administration, in contrast, has embracedthat extraconstitutional notion. The centerpieceof the Bush agenda in federal criminal law is aprogram called Project Safe Neighborhoods, abillion-dollar initiative designed to federalize theprosecution of gun law violations. Under ProjectSafe Neighborhoods, gun crimes that wouldordinarily be prosecuted at the state level—suchas possession of a handgun by a felon or druguser—are channeled into the federal system. Likethe statute invalidated in Lopez, the federal lawstargeted by PSN are based on an overbroad inter-pretation of the Commerce power and aim atbehaviors squarely within the states’ traditionalauthority over criminal law. In fact, a relatedBush administration program, Project Sentry,aims directly at enhancing prosecution of“school-related gun violence,” including the suc-cessor statute to the Gun-Free School Zones Actstruck down by the Rehnquist Court in 1995.115

A more brazen affront to the spirit of Lopez couldhardly be imagined.116

Further evidence of the president’s endorse-ment of an extraconstitutional, plenary federalpower in the area of criminal law can be foundin his approach to “pro-life” issues such ascloning and abortion. The president has enthu-siastically endorsed a bill criminalizing allattempts to achieve human cloning, a bill thatwas drafted as if the Constitution grants thefederal government a general police power.117

And on November 6, 2003, the president signedthe Partial-Birth Abortion Ban Act, whose puta-tive constitutional authority rests, once again,

on Congress’s power to regulate interstate com-merce. Despite Lopez’s and Morrison’s emphasison the necessity of congressional findings offact that show an effect on interstate com-merce, the Partial Birth Abortion Ban Actmakes no attempt to demonstrate that partial-birth abortion has a substantial effect on inter-state commerce. Nor is it limited to cases inwhich someone crossed state lines to have anabortion. Instead, the operative clause declares,“Any physician who, in or affecting interstate orforeign commerce, knowingly performs a par-tial-birth abortion and thereby kills a humanfetus shall be fined under this title or impris-oned not more than 2 years, or both.”118 Whatone thinks of the practice proscribed here isimmaterial: call it a “medical procedure” or callit “murder,” but either way an abortion per-formed in a single state is not “interstate com-merce.” If Congress can ban the practice merelyby asserting that it “affect[s] interstate com-merce,” then it’s difficult to see why it cannotpass any generally applicable criminal statute,from a federal law against murder to one ban-ning simple assault.

In 1999, former attorney general EdwinMeese headed an American Bar Associationtask force that examined the harmful conse-quences associated with the federalization ofcrime. Meese noted that the most compellingreason to oppose the federalization of crimewas because it “contradicted constitutionalprinciples.” By signing a ban on partial-birthabortion, President Bush endorsed the verything that the Framers of the Constitutiontook pains to deny to the central govern-ment: a general grant of power to enact legis-lation on any subject.119

Education and the Family. Also constitutionallyreserved to the states is control over educationpolicy, yet President Bush has dramaticallyenhanced federal involvement in education,raising federal spending on education fasterthan any president since Lyndon Johnson.120

In Lopez, Chief Justice Rehnquist raised thespectre of Congress “mandat[ing] a federal cur-riculum for local elementary and secondaryschools.”121 At President Bush’s behest, Con-

20

President Bushhas dramatically

enhanced federalinvolvement in

education.

gress has gone a long way down that road withthe No Child Left Behind Act. That statute, a670-page monstrosity signed by the presidenton January 8, 2002, imposes a number ofrequirements on states taking federal educa-tion money (which is to say, all states). Amongthose requirements are that each state imple-ment a “single state-wide accountability sys-tem,” that all students be tested in reading andmath annually from grades 3 through 8 andtested once in grades 10 through 12, and thatall students be proficient in reading and mathby 2014. States not making “adequate yearlyprogress” toward the accountability standardsare subject to an escalating series of expensivepenalties.122 Reviewing those requirements,former representative Bill Frenzel (R-MN), ascholar at the Brookings Institution, com-mented, “George Bush has gone further thanany president in terms of federalizing educa-tion.”123

NCLB’s emphasis on standardized testingis already influencing local school curricula.Across the country, many school districts arecutting summer vacation short, in large partto comply with the new testing requirementsimposed by NCLB.124

Of course, Congress has attached stringsto federal education grants before. But what’sdifferent about NCLB is that, for the firsttime, all of a state’s Title I education fundingis dependent on compliance with the NCLBregimen. Title I funding, federal money forthe education of low-income children, is thelargest portion of the federal education budg-et, $12.3 billion in 2004. Thus, the stakes forfailing to comply with federal requirementsare higher than ever before. EducationSecretary Margaret Spellings has made it clearthat states that do not comply with NCLBface the loss of all federal Title I dollars andhas suggested that recalcitrant state officialsare “un-American” for standing athwart fed-eral attempts to close the racial achievementgap.125

Spellings has lately taken a “kinder, gentler”approach to compliance. But the leverage thatNCLB gives federal regulators could spell trou-ble for local control of schools in the future.

NCLB already includes little-noticed provi-sions on school prayer and abstinence educa-tion.126 A provision that was sponsored bythen-senator Jesse Helms (R-NC) and Rep. VanHilleary (R-TN) will now deny federal funds toschool districts that exclude the Boy Scoutsfrom meeting on school property.127 To besure, neither provision represents a substantialincursion on school independence beyondwhat was already required by federal law, butboth point to the possibility of greater interfer-ence in educational decisions that ought to bemade by local school boards. When the federalgovernment seeks to use federal funds to regu-late the states in ways that it could not dodirectly through any other enumerated power,federalism is in jeopardy.128 That problem willonly be exacerbated by regulatory statutes likeNo Child Left Behind. With a greater willing-ness on the part of both parties to use federaleducational funds for regulatory purposes, wemay begin to see controversies over “intelligentdesign” or sexual preference curricula foughtout on the federal level.

As recently as 1996, the Republican Partyplatform recognized that “the Federal govern-ment has no constitutional authority to beinvolved in school curricula.” When the Repub-licans took control of Congress in 1995, theyconsidered abolishing several cabinet-level agen-cies, including the Department of Education. Intestimony before the newly Republican-con-trolled Education Committee, former educationsecretary William Bennett urged members ofCongress to abolish the Education Departmentbecause “education in America is the constitu-tional responsibility of the states.”129 Under theleadership of George W. Bush, the party hasretreated from that principle and embarked on aproject of centralized control of the nation’sschools. That project’s implications for educa-tion and constitutional government are onlybeginning to be felt.

Even in the area of marriage—a matter con-stitutionally reserved to the states if ever therewas one—President Bush sees a compelling needfor federal involvement. On February 24, 2004,the president announced his support for a con-stitutional amendment “protecting the institu-

21

Even in the areaof marriage—a matter constitutionallyreserved to thestates if everthere was one—President Bushsees a compellingneed for federalinvolvement.

tion of marriage” by defining the institution asthe legal union between one man and onewoman, and forbidding “activist judges” frominterpreting the federal or state constitutionsotherwise.130 Shortly before the 2004 State ofthe Union address, in which the presidentdeclared his support for the Federal MarriageAmendment, his administration announced a$1.5 billion federal initiative to help couplesbuild the relationship skills that lead to healthymarriages. The Department of Health andHuman Services has begun implementing someof the “marriage-education” programs. Run outof HHS’s Administration for Children andFamilies, the programs include the AfricanAmerican Healthy Marriage Initiative131 and theHispanic Healthy Marriage Initiative, designedto “address the unique cultural, linguistic,demographic, and socio-economic needs of chil-dren and families in Hispanic communities.”132

Bush appointee Wade F. Horn, assistant secre-tary for children and families at HHS, has actu-ally defended the administration’s foray intomarriage counseling as “an exercise in limited gov-ernment.”133

In his speech before the National Gover-nors’ Association at the beginning of his firstterm, the president noted that “the framers ofthe Constitution did not believe in an all-knowing, all-powerful federal government.”134

But President Bush clearly does not share theFramers’ view. His record appears to reflect thebelief that the federal government is far wiser,far more capable than the states and the peo-ple. It can determine, contrary to the advice ofphysicians and the considered judgment of thepeople of 11 states, that marijuana has no ben-eficial medical use. It can cut through the the-orizing of 10,000 ethicists and theologians andsummarily decide the question of when lifebegins and ends. It can even teach people howto have a stable marriage and raise happy andproductive children. Indeed, the Bush recordon federalism raises the question of whetherthere is any area of American life that this pres-ident believes, as a matter of principle, shouldbe left to the states.

President Bush assumed office at a water-shed moment in American constitutional his-

tory. Had Bush lived up to his pledge—had hehonored his oath to uphold the Constitution—he might have presided over a renaissance ofAmerican federalism. He might have helpedrestore the distinction between what is proper-ly national and what is properly local. Hemight, in the process, have achieved his pro-fessed goal of becoming “a uniter, not adivider” by leading us toward a less con-tentious politics and a government closer tothe people. He took a far different path, choos-ing to repudiate constitutional limits andenhance federal involvement in matters thatthe Constitution leaves to the states and thepeople. And we are all the poorer for it.

Conclusion

One searches for bright spots in the Bushconstitutional record. And there were at leasttwo. Early on in the president’s first term,Attorney General John Ashcroft made clearthat it was the Bush administration’s positionthat the Second Amendment guarantees a per-sonal, individual right to bear arms.135 In twofederal cases, the Bush administration arguedin formal court papers that the ‘‘SecondAmendment . . . protects the rights of individu-als, including persons who are not members ofany militia . . . to possess and bear their ownfirearms, subject to reasonable restrictionsdesigned to prevent possession by unfit personsor . . . firearms that are particularly suited tocriminal misuse.”136 That was a significant, ifsymbolic, victory for those who believe that theSecond Amendment means what it says, that“the right of the people” means an individual,personal right, just as it does in the First,Fourth, Fifth, and Ninth Amendments. Thepresident has also appointed a number of fed-eral judges who appear to take constitutionallimits seriously and may be expected to lookskeptically at broad claims of legislative power.However, whether the same judges will lookskeptically at broad claims of executive powerremains very much in doubt.137

But those acts are not enough to redeemthe Bush constitutional record, which is, over-

22

The Bush recordon federalism

raises the question of

whether there isany area of

American life thatthis president

believes, as a matter of

principle, shouldbe left to the

states.

whelmingly, one of contempt for constitution-al limits. In its official papers and publicactions, the Bush administration has endorseda vision of federal power that is astonishinglybroad, a vision that includes

• a federal government empowered to reg-ulate core political speech—and restrictit greatly when it counts the most: in thedays before a federal election;

• a president who can launch wars at will,and who cannot be restrained fromordering the commission of war crimes,should he choose to do so;

• a president who can lock up Americancitizens at will and forever—without anymeaningful oversight by the judiciary;and

• a federal government with the power tosupervise all areas of American life, fromeducation to marriage and through theend of life.

It is a vision, in short, unimagined by ourConstitution’s Framers.

On the campaign trail in 2000, then-gover-nor Bush typically ended his stump speech witha dramatic flourish: he pantomimed the oathof office. But the oath is more than a politicalgimmick; for the founding generation it was asolemn pledge, designed to bind the officehold-er to the country and the Constitution heserves. Throughout his tenure, President Bushhas repeatedly dishonored that pledge. Andbecause of that, he has weakened the constitu-tional order on which the American way of lifedepends.

Notes1. George Washington, “Second Inaugural Address,”March 4, 1793, Avalon Project at Yale Law School,www.yale.edu/lawweb/avalon/presiden/inaug/wash2.htm.

2. Joseph Story, “Commentaries on the Consti-tution, 3:§§ 1838–43,” in The Founders’ Consititution,http://press-pubs.uchicago.edu/founders/documents/a6_3s27.html.

3. U.S. Constitution, Article II, section 1, clause 8.

4. Thomas Jefferson, letter to Abigail Adams,September 11, 1804, in David N. Mayer, The Consti-tutional Thought of Thomas Jefferson (Charlottesville:University Press of Virginia, 1994), p. 269.

5. Specifically, the Constitution’s requirementsthat representatives be apportioned according topopulation and that the number of representativescould not exceed 1 per 30,000. David P. Currie, TheConstitution in Congress: The Federalist Period (Chicago:University of Chicago Press, 1997), p. 133.

6. Frank Easterbrook, “Presidential Review,” CaseWestern Reserve Law Review 40 (1990): 907–8.

7. Grover Cleveland, “First Inaugural Address,”March 4, 1885, in The Inaugural Addresses of the Presi-dents, ed. John Gabriel Hunt (New York: GramercyBooks, 1995), p. 245.

8. This is not the first time that the Cato Institute hasappraised the constitutional record of an Americanpresident. See Timothy Lynch, “Dereliction of Duty:The Constitutional Record of President Clinton,”Cato Institute Policy Analysis no. 271 (March 31,1997).

9. “His closer is a crowd-pleaser designed to remindaudiences subtly of the Clinton scandals withoutpiling it on.” William Goldschlag et al., “GettingPersonal: Candidates Share Favorite Tales,” Akron(Ohio) Beacon Journal, January 22, 2000.

10. Turner Broadcasting, Inc. v. FCC, 512 U.S. 622,641 (1994).

11. Thomas Jefferson, “First Inaugural Address,”March 4, 1801, Avalon Project at Yale Law School,www.yale.edu/lawweb/avalon/presiden/inaug/jefinau1.htm.

12. For background, see Douglas Johnson andMike Beard, “Campaign Reform: Let’s Not GivePoliticians the Power to Decide What We Can Sayabout Them,” Cato Institute Briefing Paper no. 31,July 4, 1997.

13. Quoted in “Roundtable on Confederate Flagand Iowa Caucuses: Interview with George W.Bush,” This Week, ABC, January 23, 2000. Emphasisadded.

14. Ibid.

15. “Red Hot Rhetoric,” The Hill, March 27, 2002, p. 6.

16. White House, “President Signs CampaignFinance Reform Act,” news release, March 27, 2002,www.whitehouse.gov/news/releases/2002/03/20020327.html.

17. 540 U.S. 93 (2003).

23

18. Ibid. at 287 (Kennedy, J., dissenting).

19. Ibid. at 249 (Scalia, J., dissenting).

20. Ibid. at 287 (Kennedy, J., dissenting).

21. Ibid. at 248 (Scalia, J., dissenting).

22. “Your Right to Say It . . . but over There,” ChicagoTribune, September 28, 2003; see also G. JeffreyMacDonald, “A Close Eye—and Tight Grip—on Cam-paign Protesters,” Christian Science Monitor, September27, 2004; Jonathan M. Katz, “Thou Dost Protest TooMuch: An Old Law Turns Protesters into Threatsagainst the President,” Slate.com, September 21, 2004,www.slate.com/Default.aspx?id=2107012&MSID=14BD4DDB6851480595BAB1B3934BF5EA.

23. Emanuel Margolis, “Penning the First Amend-ment against Free Speech Rights,” Connecticut LawTribune, August 23, 2004.

24. Quoted in Dave Lindorff, “Keeping DissentInvisible: How the Secret Service and the WhiteHouse Keep Protesters Safely out of Bush’s Sight—and off TV,” Salon.com, October 16, 2003, www.saloncom/news/feature/2003/10/16/secret_service/.

25. Magistrate Judge Shirley R. Trkula dismissedthe charge of disorderly conduct on October 31,2002, stating that “this is America, and that’s whyour forefathers came here, for freedom of speech.”Pennsylvania v. Neel, www.aclu.org/FreeSpeech/FreeSpeech.cfm?ID=13778&c=86.

26. Quoted in Lindorff. For a list of “free speechzone” incidents across the country, see “FreeSpeech under Fire: The ACLU Challenge to ‘ProtestZones,’” September 23, 2003, www.aclu.org/freespeech/protest/11419res20030923.html.

27. United States v. Grace, 461 U.S. 171, 177 (1983).

28. Mahoney v. Babbitt, 105 F.3d 1452, 1454 (D.C.Cir. 1997).

29. The Nixon administration was also guilty ofusing the Secret Service to harass demonstrators atpresidential appearances. See Sparrow v. Goodman,361 F. Supp. 566 (W.D.N.C. 1973), aff’d, 502 F.2d1326 (4th Cir. 1979).

30. U.S. Constitution, Article II, section 3.

31. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.579, 587 (1952).

32. James Madison, “Letters of Helvidius, No. II,”in The Letters of Pacificus and Helvidius (1845) with theLetters of Americanus: A Facsimile Reproduction withan Introduction by Richard Loss (Delmar, NY:

Scholars’ Facsimiles & Reprints, 1976).

33. Alexander Hamilton, Federalist no. 69, in TheFederalist, ed. George W. Carey and James McClellan(Dubuque, IA: Kendall-Hunt, 1990), pp. 357–58.

34. Quoted in John Herbers, “The 37th President;In Three Decades, Nixon Tasted Crisis and Defeat,Victory, Ruin and Revival,” New York Times, April24, 1994.

35. See Michael John Garcia, “U.N. Conventionagainst Torture (CAT): Overview and Applicationto Interrogation Techniques,” CRS Report forCongress RL32438, February 10, 2005.

36. U.S. Department of Justice, “Memorandum forAlberto R. Gonzales Counsel to the President Re:Standards of Conduct for Interrogation under 18U.S.C. §§ 2340-2340A,” August 1, 2002, p. 39, www.washingtonpost.com/wpsrv/nation/documents/dojinterrogationmemo20020801.pdf.

37. “Working Group Report on Detainee Interro-gations in the Global War on Terrorism: Assessmentof Legal, Historical, Policy, and Operational Consid-erations,” Wall Street Journal, online edition, March 6,2003, http://online.wsj.com/public/resources/documents/military_0604.pdf.

38. Michael Froomkin, “Apologia Pro Tormento:Analyzing the First 56 Pages of the Walker Work-ing Group Report (aka the Torture Memo),”Discourse.net, June 9, 2004, www.discourse.net/archives/2004/06/apologia_pro_tormento_analyzing_the_first_56_pages_of_the_walker_working_group_report_aka_the_torture_memo.html.

39. U.S. Constitution, Article I, section 8, clause 14.

40. Ibid., Article I, section 8, clause 10.

41. Ibid., Article II, section 3.

42. Quoted in Tom Jackman, “‘U.S. a Battlefield,’Solicitor General Tells Judges,” Washington Post,July 20, 2005, p. A9.

43. “Because the discussion in that memorandumconcerning the President’s Commander-in-Chiefpower and the potential defenses to liability was—and remains—unnecessary, it has been eliminatedfrom the analysis that follows. Consideration of thebounds of any such authority would be inconsis-tent with the President’s unequivocal directive thatUnited States personnel not engage in torture.” U.S.Department of Justice, “Memorandum for James B.Comey, Deputy Attorney General Re: LegalStandards Applicable under 18 U.S.C. §§ 2340-2340A,” December 30, 2004, www.usdoj.gov/olc/dagmemo.pdf.

24

44. White House, “President’s Statement on Signingof H.R. 2863, the ‘Department of Defense, EmergencySupplemental Appropriations to Address Hurricanesin the Gulf of Mexico, and Pandemic Influenza Act,2006,’” news release, www.whitehouse.gov/news/releases/2005/12/ 20051230-8.html.

45. See Phillip J. Cooper, “George W. Bush, EdgarAllan Poe, and the Use and Abuse of PresidentialSigning Statements,” Presidential Studies Quarterly35 (September 2005). See also Josh White andCarol D. Leonnig, “U.S. Cites Exception in TortureBan,” Washington Post, March 3, 2006, p. A4.

46. John C. Yoo, deputy assistant attorney general,Office of Legal Counsel, “Application of War PowersAct to War on Terrorism,” Testimony before theSenate Subcommittee on the Constitution, Federal-ism and Property Rights of the Senate JudiciaryCommittee, 107th Cong., 2d sess., April 17, 2002.http://judiciary.senate.gov/hearing.cfm?id=225.

47. John C. Yoo, “The President’s ConstitutionalAuthority to Conduct Military Operations againstTerrorists and Nations Supporting Them,” memo-randum opinion for the deputy counsel to thepresident, September 25, 2001, http://www.usdoj.gov/olc/warpowers925.htm.

48. “‘We don’t want to be in the legal position ofasking Congress to authorize the use of forcewhen the president already has that full authori-ty,’ said a senior administration official involvedin setting the strategy. ‘We don’t want, in gettinga resolution, to have conceded that one was con-stitutionally necessary.’” Mike Allen and JulietEilperin, “Bush Aides Say Iraq War Needs No HillVote,” Washington Post, August 26, 2002, p. A1.

49. Ibid.

50. Pub. L. No. 107-40, 115 Stat. 224 (September18, 2001).

51. See McDonald v. United States, 335 U.S. 451,455–56 (1948).

52. See County of Riverside v. McLaughlin, 500 U.S.654 (1988).

53. George W. Bush, “Detention, Treatment, andTrial of Certain Non-Citizens in the War againstTerrorism,” Federal Register 66 (November 13,2001): 833 (hereinafter Bush Military Order), sec-tions 2(a)(1), 2(a)(2), and 3(a).

54. Section 7(b)(2) of the Bush Military Orderprovides that “the individual shall not be privi-leged to seek any remedy or maintain any pro-ceeding, directly or indirectly, or to have any suchremedy or proceeding sought on the individual’s

behalf, in (i) any court of the United States, or anyState thereof.”

55. See Zadvydas v. Davis, 533 U.S. 678 (2001); YickWo v. Hopkins, 118 U.S. 356 (1886); Wong Wing v.United States, 163 U.S. 228 (1896). Noncitizenshave always benefited from the safeguards of theFourth Amendment. See Au Yi Lau v. INS, 445F.2d 217 (1971); Illinois Migrant Council v. Pilliod,540 F.2d 1062 (1976).

56. See Johnson v. United States, 333 U.S. 10, 13–14(1948).

57. See Elizabeth Neuffer, “Judge Says N.J. Can’tHide ID’s of People in Custody,” Boston Globe,March 27, 2002; and Russ Feingold, “Name theDetainees,” Washington Post, December 23, 2001.

58. Quoted in Amy Goldstein, “A Deliberate Strategyof Disruption,” Washington Post, November 4, 2001.

59. Llaguno v. Mingey, 763 F.2d 1560, 1568 (1985).

60. Steve Fainaru and Margot Williams, “MaterialWitness Law Has Many in Limbo,” WashingtonPost, November 24, 2002, p. A1.

61. Stacey M. Studnicki and John P. Apol, “WitnessDetention and Intimidation: The History andFuture of Material Witness Law,” St. John’s LawReview 76 (2002): 483.

62. “Witness to Abuse: Human Rights Abusesunder the Material Witness Law since September11,” Human Rights Watch 17, no. 2 (June 2005).

63. See Beck v. Ohio, 379 U.S. 89 (1964); Wong Sunv. United States, 371 U.S. 471 (1963).

64. In addition to Patriot Act 215 orders andnational security letters, President Bush has cham-pioned other dubious proposals, such as “sneakand peek” search warrants and “administrative”subpoenas for federal agents. For a critique, seeStephen J. Schulhofer, Rethinking the Patriot Act(New York: Century Foundation Press, 2005).

65. “Upon an application made pursuant to thissection, the judge shall enter an ex parte order asrequested, or as modified, approving the release ofrecords if the judge finds that the applicationmeets the requirements of this section.” If the FBIcan remember to include boilerplate languageabout “terrorism investigations” in its requests, theapplications will easily meet “the requirements” ofsection 215. See Schulhofer, pp. 55–78.

66. Dan Eggen, “Secret Court Poses Challenges:Non-Government Litigants Lack Access, Ways toInfluence Cases,” Washington Post, August 30, 2004.

25

67. Bob Barr, chairman, Patriots to Restore Checksand Balances, Testimony on the USA Patriot Actbefore the Senate Judiciary Committee, 109thCong., 1st sess., May 10, 2005, http://judiciary.sen-ate.gov/testimony.cfm?id=1493&wit_id=4256. Seealso Bob Barr, “Clearing the Air on the Patriot Act,”Washington Times, May 17, 2005, http://judiciary.house.gov/media/pdfs/barr050305.pdf.

68. See Doe v. Ashcroft, 334 F. Supp. 2d 471 (2004).

69. Ibid. at 501.

70. Ibid. at 475.

71. The Supreme Court has not ruled directly onthe question of warrantless domestic surveillanceof American citizens who are agents of foreignpowers, but the separation of powers rationaleoutlined in the Keith opinion applies directly tothe current controversy over the NSA program:“Fourth Amendment freedoms cannot properlybe guaranteed if domestic security surveillancesmay be conducted solely within the discretion ofthe Executive Branch. The Fourth Amendmentdoes not contemplate the executive officers ofGovernment as neutral and disinterested magis-trates. . . . [T]hose charged with this investigativeand prosecutorial duty should not be the solejudges of when to utilize constitutionally sensi-tive means in pursuing their tasks.” Katz v. UnitedStates, 389 U.S. 347 (1967); United States v. UnitedStates District Court, 407 U.S. 297, 316–17 (1972)(the Keith case).

72. The Bush administration also relies on a con-gressional resolution that was passed shortly afterthe September 11 attacks, which authorized the useof military force. See Authorization for Use ofMilitary Force, Pub. L. No. 107–40, 115 Stat. 224(September 18, 2001). However, Bush’s lawyers havemade it clear that even if that resolution had notbeen enacted, the president could have proceededwith his controversial eavesdropping program.According to a white paper released by theDepartment of Justice, “The NSA activities are sup-ported by the President’s well-recognized inherentconstitutional authority as Commander in Chiefand sole organ for the Nation in foreign affairs toconduct warrantless surveillance of enemy forces forintelligence purposes to detect and disrupt armedattacks on the United States.” U.S. Department ofJustice, “Legal Authorities Supporting the Activitiesof the National Security Agency Described by thePresident,” January 19, 2006.

73. James Risen and Eric Lichtblau, “Bush LetsU.S. Spy on Callers without Courts,” New YorkTimes, December 16, 2005.

74. Charlie Savage, “Bush Launches a Bid to Justify

Domestic Spying,” Boston Globe, January 24, 2006.

75. In defense of the NSA program, Bush’s top lawenforcement official stated, “The Justice Depart-ment during the Clinton Administration testified in1994 that the President has inherent authorityunder the Constitution to conduct foreign intelli-gence searches of the private homes of U.S. citizensin the United States without a warrant.” PreparedRemarks for Attorney General Alberto R. Gonzalesat the Georgetown University Law Center, January24, 2006. Turning to Bill Clinton’s constitutionalclaims for guidance is a mark of how low the Bushadministration has sunk. For a critique of Clinton’srecord, see Timothy Lynch, “Dereliction of Duty.”See also The Rule of Law in the Wake of Clinton, ed.Roger Pilon (Washington: Cato Institute, 2000);James Bovard, “Feeling Your Pain:” The Explosion andAbuse of Government Power in the Clinton-Gore Years(New York: St. Martin’s, 2000).

76. Jackman. See also George F. Will, “Why Didn’tHe Ask Congress?” Washington Post, December 20,2005, p. A31; Richard A. Epstein, “Executive Poweron Steroids,” Wall Street Journal, February 13, 2006,p. A16; Robert A. Levy, “Wartime Executive Powerand the NSA’s Surveillance Authority,” Testimonybefore the Senate Judiciary Committee, February28, 2006.

77. See Brief for United States, Hamdi v. Rumsfeld,542 U.S. 507 (2004). See also Brief for UnitedStates, Rumsfeld v. Padilla, 542 U.S. 426 (2004).

78. See Timothy Lynch, “Affront to Civil Liberties,”National Law Journal, October 3, 2005.

79. For example, Alexander Hamilton wrote thatthe habeas corpus provision was a “great securityto liberty and republicanism.” Federalist no. 84, inThe Federalist, p. 442.

80. Brief for Respondents-Appellants at 12,Hamdi v. Rumsfeld, 296 F.3d 278 (4th Cir. 2002).

81. See Timothy Lynch, “Hamdi and HabeasCorpus,” Wall Street Journal, April 23, 2004.

82. Brief for Cato Institute, Hamdi v. Rumsfeld, 542U.S. 507 (2004).

83. Hamdi v. Rumsfeld, 542 U.S. 507 (2004).

84. Ibid. at 536.

85. Ibid. at 554–55 (Scalia, J., dissenting).

86. For example, Rich Lowry, editor of NationalReview, dismissed the alarm expressed by civil lib-ertarians about Bush’s actions in this case as anexample of overheated rhetoric. Lowry sarcastical-

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ly mocked those concerned about the constitu-tional issue: “The other dire threat to our libertiesis that two American citizens—count them: one,two—are being held as enemy combatants.” RichLowry, “The Price of Life without a Shield,”Washington Times, October 29, 2002.

87. Interestingly, it appears that then–attorney gen-eral John Ashcroft had to wage a behind-the-scenesbattle to stop Vice President Dick Cheney andDefense Secretary Donald Rumsfeld from lockingup more Americans in military prisons. See MichaelIsikoff and Daniel Klaidman, “White House andJustice Officials Had Fierce Debates over How toTreat Americans with Suspected Al Qaeda Ties:Either Lock up Indefinitely As ‘Enemy Combatants’or Let System Work,” Newsweek, April 26, 2004.

88. See Timothy Lynch, “We All Lose When JudgesOverreach,” Los Angeles Times, January 24, 2000.

89. Bush Military Order. See also William Safire,“Kangaroo Courts,” New York Times, November 26,2001.

90. Robert H. Bork, “Having Their Day in (a Military)Court,” National Review, December 17, 2001; DouglasW. Kmiec, “This Is War, and Military Justice IsAppropriate,” Los Angeles Times, June 14, 2002. But seeRobert A. Levy, “Don’t Shred the Constitution toFight Terror,” Wall Street Journal, November 20, 2001;and Robert A. Levy, “Misreading Quirin,” NationalLaw Journal, January 14, 2002.

91. See William H. Rehnquist, All the Laws but One(New York: Knopf, 1998), pp. 11–25.

92. Ex Parte Milligan, 71 U.S. (4 Wall.) 2 (1866).

93. Ibid.

94. Ibid. at 122–23. Emphasis in original.

95. See Timothy Lynch, “Power and Liberty inWartime,” Cato Supreme Court Review 2003–2004,http://www.cato.org/pubs/scr/2004/powerandliberty.pdf.

96. Because the president’s military order imme-diately became mired in controversy, his lawyershave backed away from what that order actuallysays. For example, the Justice Department deniesany attempt to suspend habeas corpus. However,that denial is not persuasive. See Bush MilitaryOrder, Section 7(b)(2).

97. Supporters of the president’s enemy combatantand military tribunal policies place great emphasison Ex Parte Quirin, 317 U.S. 1 (1942), in which theSupreme Court upheld a military tribunal’s juris-diction over several Nazi saboteurs, including one

naturalized American citizen. That decision cannotbear the weight the administration’s supportersput on it, for several reasons, not least of which isthat the petitioners in Quirin admitted their guiltand did not challenge their status as enemy bel-ligerents. See also Levy, “Misreading ‘Quirin.’”

98. See Timothy Lynch, director, Project on CriminalJustice, Cato Institute, Statement on ExecutiveBranch Arrests and Trials (Military Tribunals) beforethe Senate Judiciary Committee, 107th Cong., 1stsess., December 4, 2001, www.cato.org/testimony/ct-tl120401.html; and Brief for Cato Institute, Hamdanv. Rumsfeld, 415 F.3d 33 (2005), cert. granted onNovember 7, 2005 (no. 05-184).

99. United States v. Lopez, 514 U.S. 549, 552 (1995).

100. Federalist no. 45, in The Federalist, p. 238.

101. Federalist no. 17, in The Federalist, p. 85.

102. White House, “Remarks by the President atNational Governors’ Association Meeting,” newsrelease, February 26, 2001, www.whitehouse.gov/news/releases/2001/02/20010226-8.html.

103. United States v. Morrison, 529 U.S. 598 (2000).

104. Proceedings before the Supreme Court of theUnited States, United States v. Lopez, Case no. 93-1260, Tuesday, November 8, 1994, official tran-script, pp. 10–13.

105. Lopez, 514 U.S. at 567–68 (1995).

106. Gonzales v. Raich, 125 S. Ct. 2195 (2005).

107. “Declaration of Diane Monson in Support ofMotion for Preliminary Injunction,” Raich v.Ashcroft, Case No. C 02 4872 EMC (N.D. Calif.)October 29, 2002, www.angeljustice.org/downloads/raichashdiane.pdf.

108. Raich, 125 S. Ct. at 2229 (Thomas, J., dissenting).

109. Quoted in Stacy Finz, “Nineteen Named inMedicinal Pot Indictment; More Than 9,300Marijuana Plants Were Seized in Raids,” SanFrancisco Chronicle, June 24, 2005, p. B4.

110. Gonzales v. Oregon, No. 04-623, 2006 LEXIS767 (2006).

111. Nelson Lund, “Why Ashcroft Is Wrong onAssisted Suicide,” Commentary, February 2002.

112. Pub. L. No. 109-3, An Act for the Relief of theParents of Theresa Marie Schiavo, March 21, 2005.See also Cruzan v. Director, Missouri Department ofHealth, 497 U.S. 261 (1990).

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113. Quoted in Jan Crawford Greenburg, “SchiavoDebate Grips Nation,” Chicago Tribune, March 22,2005.

114. Lopez, 514 U.S. at 564.

115. See Seth J. Safra, “The Amended Gun-FreeSchool Zones Act: Doubts as to Its ConstitutionalityRemain,” Duke Law Journal 50 (November 2000): 637.

116. See Gene Healy, “There Goes the Neighborhood:The Bush-Ashcroft Plan to ‘Help’ Localities FightGun Crime,” Cato Institute Policy Analysis no. 440,May 28, 2002.

117. Human Cloning Prohibition Act of 2001, S.1899. See “President Bush on Cloning” PBS OnlineNews Hour, April 10, 2002; www.pbs.org/newshour/updates/april02/bush-cloning_4-10.html.

118. Partial-Birth Abortion Ban Act of 2003, Pub.L. No. 108-105, § 1531 (a).

119. See American Bar Association Task Force on theFederalization of Criminal Law, The Federalization ofCriminal Law, 1998; Edwin Meese, “The DangerousFederalization of Crime,” Wall Street Journal, February22, 1999. See also David Rivkin and Lee A. Casey, “Letthe States Regulate Partial-Birth Abortion,” Wall StreetJournal, April 9, 1997, p. A15.

120. Stephen Slivinski, “The Grand Old SpendingParty: How Republicans Became Big Spenders,” CatoInstitute Policy Analysis no. 543, May 3, 2005, p. 15.

121. Lopez, 514 U.S. at 565.

122. No Child Left Behind Act of 2001, Pub. L. N.107-110. See also Lawrence A. Uzzell, “No Child LeftBehind: The Dangers of Centralized EducationPolicy,” Cato Institute Policy Analysis no. 544, May31, 2005.

123. Quoted in Steven Thomma, “Bush’s VisionRedefines the Conservative Tradition,” PhiladelphiaInquirer, February 15, 2005.

124. Michael Janofsky, “As More Schools OpenEarlier, Parents Seek to Reclaim Summer,” NewYork Times, August 6, 2005.

125. Steve Goldstein, “Education Secretary Is aLightning Rod over No Child Left Behind,” Philadel-phia Inquirer, May 29, 2005.

126. Pub. L. No. 107-110, §§ 9524, 9526.

127. Ibid., §9525.

128. See Lynn A. Baker, “Conditional FederalSpending after Lopez,” Columbia Law Review 95

(December 1995): 1911.

129. Prepared Joint Statement by Former Secretariesof Education Lamar Alexander and William J.Bennett, “Abolishing the Department of Educationto Liberate Parents and Schools,” delivered beforethe House Economic and Educational Opportuni-ties Committee, Subcommittee on Oversight andInvestigation, January 26, 1995.

130. White House, “President Calls for Constitu-tional Amendment Protecting Marriage,” newsrelease, February 24, 2004, www.whitehouse.gov/news/releases/2004/02/20040224-2.html. The pres-ident’s fear that the federal courts might strike downthe Defense of Marriage Act and nationalize same-sex marriage is speculative, to put it charitably. IfPresident Bush were truly concerned about stateprerogatives, he could have proposed an amend-ment that would have constitutionalized DOMA.Instead, he’s trampled on state prerogatives byproposing an amendment that compels every stateto adopt a uniform federal rule. For a critique, seeDale Carpenter, “The Federal Marriage Amend-ment: Unnecessary, Anti-federalist, and Anti-democ-ratic,” Cato White Paper, September 23, 2004, http://www.cato.org/pub_display.php?pub_id=5076.

131. U.S. Department of Health and HumanServices, “What Is the African American HealthyMarriage Initiative (AAHMI)?” www.acf.hhs.gov/healthymarriage/aa_hmi/AAHMI.html.

132. U.S. Department of Health and HumanServices, “Hispanic Healthy Marriage Initiative(HHMI),” www.acf.hhs.gov/healthymarriage/about/hispanic_hm_initiative.html#mission.

133. Wade F. Horn, “Wedded to Marriage,” NationalReview, August 9, 2005, www.nationalreview.com/comment/horn200508090806.asp. Emphasis inoriginal.

134. White House, “Remarks by the President atNational Governors’ Association Meeting.”

135. In a November 9, 2001, memo to all the U.S.attorneys, Ashcroft endorsed the individual rightto bear arms and reminded the prosecutors “torespect the constitutional rights guaranteed toAmericans,” www.usdoj.gov/osg/briefs/2001/0responses/2001-8780.resp.pdf.

136. See.Robert A. Levy, “Bearing Arms in D.C.,”Legal Times, July 24, 2002.

137. See Jess Bravin, “Judge Alito’s View of thePresidency: Expansive Powers,” Wall Street Journal,January 5, 2006; Jeffrey Rosen, “Samuel Alito,Executive Assistant,” New Republic, January 30,2005.

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