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Madison's NightmareHow Executive Power Threatens American Democracy$
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Peter M. Shane

Print publication date: 2009

Print ISBN-13: 9780226749396

Published to Chicago Scholarship Online: March 2013

DOI: 10.7208/chicago/9780226749426.001.0001

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

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

Chapter:
(p.112) 5 Form over Accountability: Executive Privilege, Signing Statements, and the Illusion of Law
Source:
Madison's Nightmare
Publisher:
University of Chicago Press
DOI:10.7208/chicago/9780226749426.003.0005

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

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