Resolving the Goldsmith Contradiction:

Some of Glenn Reynolds/Instapundit’s readers claim that there is a contradiction between his claim that Jack Goldsmith’s new book on the War On Terror criticizes excessive legal constraints on presidential wartime authority, and Jonathan Adler and Orin Kerr’s characterization of Goldsmith as criticizing the Bush Administration’s assertions of virtually unlimited presidential power in time of war.

In reality, there is no contradiction here. Glenn is right to point out that Goldsmith believes that pre-9/11 law constrained presidential wartime authority too much, and that some of the Bush Administration’s efforts were undercut by those constraints. But Orin and Jonathan are also correct in pointing out that Goldsmith disapproved of the Bush Administration’s response to the problem. Instead of working with Congress and the courts to change overly restrictive laws (Goldsmith’s preferred strategy), the Administration chose to claim that they already had the power to do almost anything the president might want to, so long as it has even a remote connection to waging the war. As Goldsmith argues, this approach is bad law because the Constitution does in fact allow congressional and judicial restriction of the president’s warmaking powers, and in some cases even requires it (for my take on these issues in a debate with John Yoo and others, see here).

Goldsmith also argues that the Bush Administration’s approach was politically counterproductive and led to an actual diminution of the executive authority that the administration sought to enhance. Bush’s overreaching generated a backlash in Congress and the courts that eventually led to stronger curbs on executive power than would have existed had the Administration tried to work with Congress early on and made less sweeping (but still broad) claims of inherent presidential power. As Goldsmith himself puts it, “They [the Bush Administration] embraced this vision because they wanted to leave the presidency stronger than when they assumed office, but the approach they took achieved exactly the opposite effect. The central irony is that people whose explicit goal was to expand presidential power have diminished it.”

In sum, Goldsmith believes that the War on Terror has been hobbled by excessive legal constraints, but also argues that the Bush Administration’s response to the problem was both legally dubious and politically counterproductive. In my view, he is largely correct on both counts.

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