The Discretionary President: The Promise and Peril of Executive Power

George W. Bush’s use of the war on terror to justify the creation of a unitary executive, acting outside and even against the law, was a source of praise and blame for his administration.Immediately after 9/11, a constitutionalist would have worried about the peril of executive power, but today he might worry that we ignore its promise and distrust discretionary actions that truly ought to be taken by presidents in times of peril. Benjamin Kleinerman addresses the fundamental question of what role discretionary executive power should play in a constitutional order, reexamining what has become an intractable debate to show that what can destroy our Constitution also has the potential to save it.Kleinerman traces this problem from Hobbes through Lincoln to address one of the central dilemmas of our post-9/11 age: how to empower the president to respond to legitimate threats without endangering the constitutional order.He stakes out a middle ground in this highly contentious debate, affir