Like movie sequels, second editions of notable scholarly books often disappoint. Phillip J. Cooper’s By Order of the President: The Use and Abuse of Executive Direct Action (University Press of Kansas, second edition) is an exception.
As a presidential candidate in 2007 and 2008, Barack Obama made stirring pledges to respect the rule of law and to abide by constitutional limitations on certain presidential powers. He left no doubt that he intended to put an end to George W. Bush-era governing practices that many argued had resulted in a dangerous unleashing of unconstrained presidential powers. On such topics as initiating war, military detention, interrogation practices, rendition, domestic surveillance, candidate Obama strongly criticized the Bush administration for having violated longstanding U.S. constitutional and even moral principles. He went so far as to argue that the U.S. had…
Statue of Alexander Hamilton at U.S. Treasury Department, by James Frasier (Image: Bill Perry/Shutterstock.com).
What does Executive privilege protect?
Executive privilege is the constitutional principle that permits the president and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public. This presidential power is controversial because it is nowhere mentioned in the U.S. Constitution. That fact has led some scholars (Berger 1974; Prakash, 1999) to suggest that executive privilege does not exist and that the congressional power of inquiry is absolute. There is no doubt that presidents and their staffs have secrecy needs and that these decision makers must be able to deliberate in private without fear that every utterance may be made public. But many observers question whether presidents have the right to withhold documents and testimony in the face of congressional investigations or judicial proceedings.