Form over Accountability: Executive Privilege, Signing Statements, and the Illusion of Law

in Madison's Nightmare

Published by University of Chicago Press

Published in print May 2009 | ISBN: 9780226749396
Published online March 2013 | e-ISBN: 9780226749426 | DOI:
Form over Accountability: Executive Privilege, Signing Statements, and the Illusion of Law

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This chapter explains how contemporary presidentialism has embraced an especially thin view of what the rule of law entails. This tendency is exhibited in the Bush 43 Administration's treatment of executive privilege and in the proliferation of presidential signing statements raising constitutional objections to statutes that the President is signing into law. The Bush 43 Administration has a tendency toward conceptually rigid interpretations of executive power and has a penchant for minting its own currency of formal legal legitimacy. Its performance gave Americans a kind of natural experiment in how the presidentialists' rule of law attitude plays out in practice, and it is the record of that Administration that indicts the presidentialist vision of the rule of law most effectively. Moreover, its repeated utterance of its constitutional philosophy was calculated to shape executive branch behavior by solidifying allegiance to norms of hostility to external accountability.

Keywords: contemporary presidentialism; Bush 43 Administration; executive privilege; presidential signing statements; executive power

Chapter.  13275 words. 

Subjects: Constitutional and Administrative Law

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