Due Processes of Governance: Terror, the Rule of Law, and the Limits of Institutional Design

Abstract

The George W. Bush administration was more aggressive than most in asserting independent executive competence pursuant to the president's joint roles as commander in chief of the armed forces and as head of the executive branch. One of its legacies is that the rule of law is an unsettled matter, both intellectually and practically. While constitutional reform to provide a framework for law‐based governance under emergency conditions may be required, it is unlikely to occur. Analysis should consider how to improve the design and operation of microstructures within the executive branch. This article surveys options for instituting design changes but concludes that no such option is compelling, given the requirements of good lawyering about contentious issues within the executive branch. It recommends systematic deliberation about “best practices” in executive branch lawyering—with the ambition of articulating a practical theory on the due processes of governance that encompasses the special circumstances of emergency conditions.