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Presidential Powers by Harold J. Krent (New York University Press, 279 pages, $45) President George W. Bush has displayed an aggressive approach to exercising the powers available to him under Article II of the Constitution. In his first term, the president asserted that the United States could detain enemy combatants indefinitely, exempt from judicial review, and his administration refused to disclose information about the activities of the energy task force headed by Vice President Dick Cheney. The president’s detractors contend that Bush has elevated the imperial presidency to new heights, while his supporters insist that his approach to presidential power is no more aggressive — and no less justified — than that of his most illustrious predecessors, including Abraham Lincoln, Franklin Roosevelt, and Ronald Reagan. Harold J. Krent puts this debate in perspective with Presidential Powers, a thoughtful contribution to the literature on the constitutional authority of the president. Krent, who is dean and professor of law at Chicago-Kent College of Law, is not interested in evaluating the politics or policies of Bush or his predecessors. Instead, he offers a comprehensive yet concise survey of the president’s powers in five areas: the executive’s powers to administer the laws passed by Congress; to conduct foreign affairs; to ensure domestic security; and to pardon. Another chapter examines the president’s immunity from suit and his ability to withhold information from Congress and in litigation by asserting executive privilege. As Krent shows, the relevant tools for evaluating claims of presidential power are the text of the Constitution, in particular Article II; the structure of the Constitution; case law; and political history. Needless to say, they often produce conflicting evidence about the extent of the president’s powers. For example, in Hamdi v. Rumsfeld, President Bush argued that he had the right to detain “enemy combatants” indefinitely, without charging them or permitting them access to counsel. The president cited Article II of the Constitution (which identifies him as “Commander in Chief”) as well as the Congressional resolution passed after Sept. 11, 2001 — which authorized him “to use all necessary and appropriate force against . . . persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11″ — as legal authority for his actions. Hamdi responded that the president’s power to detain was limited by other constitutional provisions — the right to habeas corpus set out in Article I of the Constitution, which gives individuals access to the federal courts to challenge extralegal executive detentions, and the right to a hearing established by the Fifth Amendment due process clause. The Supreme Court sided with Hamdi, albeit in a splintered decision. In her opinion, Justice Sandra Day O’Connor stated that “we necessarily reject the government’s assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances.” With respect to Vice President Cheney’s energy task force, the Court was required to resolve a dispute over the availability of executive privilege. Early in his first term, President Bush established the National Energy Policy Development Group, a task force headed by Cheney, to develop a national energy policy. The energy group was sued in federal court over its decision to meet privately with private industry lobbyists and other nonfederal employees and to not disclose publicly anything more, essentially, than a final report on its recommendations. In the litigation, the vice president and the energy group objected to discovery requests seeking more information about the group’s activities on the grounds of executive privilege. (Whether the information plaintiffs sought in discovery should be available coincided with the merits of their claims — essentially plaintiffs alleged that information about private meetings held by the energy group with private citizens as well as the energy group’s deliberations should be disclosed pursuant to federal law.) Although an interlocutory appeal of a discovery order before litigation has concluded is routinely denied, the government obtained immediate review of the District Court’s order in the U.S. Court of Appeals for the D.C. Circuit and then the Supreme Court. The Supreme Court returned the case to the lower courts counseling that those courts defer to the vice president’s claims of executive privilege. In both Hamdi and Cheney, the Supreme Court had the final say on the scope of the executive’s powers and privileges. Indeed, although the current Court does not seem to have a view ex ante on the proper scope of executive power, it is quite adamant in reserving for itself the last word on separation-of-powers disputes, including disagreements over the president’s powers. This leads to my first quibble with Krent. His survey of the landscape of executive power — including the role of courts in shaping that landscape — is both lucid and comprehensive. However, in covering the classic cases — such as then-President Harry Truman’s seizure of the steel mills during the Korean War, subsequently invalidated by the Supreme Court in Youngstown Sheet & Tube Co. v. Sawyer — Krent does not sufficiently emphasize the current interplay between an expansive president and an aggressive Supreme Court. Nevertheless, I must acknowledge that Krent’s academic approach strengthens the credibility of his presentation. Strong presidents inspire strong feelings. Krent, however, manages to stay above the fray. His purpose is to survey, and he has written an elegant handbook on executive power. My second quibble with Krent’s approach will be most understandable, I suspect, to the lay reader. Disputes about the scope of executive branch power — such as Richard Nixon’s refusal to turn over his tapes, Lincoln’s suspension of habeas corpus, and Bill Clinton’s decision to freely pardon political supporters — often result in high constitutional drama and heated political rhetoric. Krent’s analytical approach, however, distances the reader from the passions such cases engender. Rodger Citron is a visiting associate professor of law at Touro Law Center. His e-mail address is [email protected].

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