Politics as Law: Juridified Executive Unilateralism in the Global War on Terror

Dissertation in Politik

Mentoring Team:
First supervisor: Prof. Dr. Margit Mayer
Second supervisor: Prof. Dr. Lora Anne Viola
Third supervisor: Prof. Amanda Hollis-Brusky PhD

“Presidential power is the power to persuade,” wrote Neustadt in his influential 1960 book, Presidential Power. Since the penning of that famous phrase, presidency scholars have demonstrated that “weak is [not always] the word with which to start” when examining the presidency. In fact, presidents can flex their institutional muscles and exercise unilateral authority in a wide range of policy areas (cf. Howell).

In the vein of the executive unilateralism literature, I contend that presidents can utilise what I call a “legal strategy” and employ their legal resources to enhance executive power and/or to affect policy change by generously interpreting, interpreting away, and re-interpret existing laws and constitutional strictures in order to avoid the transaction costs associated with the inter-branch institutional process. The Bush administration’s post-9/11 behaviour is a case in point. This project’s guiding question is: why do we see a change in the nature of presidential power after 9/11 (from law executor to interpreter)?

Based on historical institutionalism, I endeavour to demonstrate that Democratic presidential administrations since Watergate have utilised legal arguments from the Office of Legal Counsel and laid the basis for Bush 43’s use of executive power. While the Bush administration clearly moved beyond precedent, its institutional behaviour was not an aberration but rather a continuation of the practice of previous post-Watergate presidencies, including Democratic ones.

Case studies:

I utilize three case studies from three different national security contexts to demonstrate continuity across post-Watergate administrations: the Iran Crisis during Carter’s term in office, Kosovo and Bosnia under Clinton, and the War on Terror under Obama. My fourth case study comprises pre-Watergate legal memoranda to demonstrate that Watergate was a critical juncture in the development of American political institutions and that is precipitated the juridification of interbranch politics.

Methodology:

I employ qualitative research methods such as case studies, textual analysis, and interviews to test my hypotheses. I carry out an in-depth content analysis (using Maxqda) of the relevant OLC memoranda related to crises (Iran crisis, Bosnia, Kosovo, GWOT) to highlight continuities and differences between Bush administration and post-Watergate democratic administrations. I use the available pre-Watergate OLC memos to demonstrate the impact of the critical juncture on the Executive branch’s institutional behaviour.  

I examine a number of explanatory factors that facilitate the reliance on a legal strategy to achieve desired policy goals and result in the accretion of constitutional and statutory interpretive authority in the executive branch at the expense of the coordinate branches: the juridification of (inter-branch) politics, the polarisation of Congress, external events, political agency, and judicial under-enforcement of constitutional principles.

My work makes an important contribution to the literature on presidential power by identifying another form of executive unilateralism (juridified executive unilateralism) and by demonstrating Democratic administrations’ use thereof. Furthermore, this study presents indicators that Carter’s and Clinton’s use of the legal strategy helped lay the foundation of a much more expansive project that was undertaken in the Bush OLC and continued under Obama.

Dissertation advisers: Lora Anne Viola (Freie Universität Berlin), Amanda Hollis-Brusky (Pomona College), Margit Mayer (Freie Universität Berlin), James Pfiffner (George Mason University)