The Executive Office of the President and the Bush administration in general have drawn widespread criticism for their push toward a “unitary executive,” a presidency with vastly increased power to interpret and implement the law. The administration’s decision to authorize warrantless wiretapping, its use of signing statements to pick and choose which portions of legislation to execute, its push for unrestricted detention of suspects in the war on terror, and its broad and aggressive assertion of executive privilege all drew bipartisan criticism. Some view the changes as a positive reassertion of executive power that was lost in the aftermath of the Watergate scandal — indeed, as far back as the dawn of the Reagan administration, current Vice President Dick Cheney had pushed incoming Reagan White House Chief of Staff James Baker to “restore power” and authority to the executive branch. Cheney and other adherents of the unitary executive believe that a powerful executive branch is especially important during time of war. Others view it as a dangerous power grab by a president unwilling to be held accountable by the judicial or legislative branches. Either way, with its opposition to both judicial review of its decisions (regarding handling of detainees, for example) and assertions of authority over Congress (as seen through its signing statements and refusal to respond to congressional subpoenas), the Bush administration has pushed executive power to a level unseen for many years. The White House press office did not respond to a request for comment, but in 2006, President Bush defended his decision-making role, noting, “I'm the decider, and I decide what's best.”

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Despite congressional and judicial attempts to reign in the unitary executive, the Bush White House has continued to assert its power over Congress and the judiciary. Some have argued that congressional additions to the administration’s original concept of the financial bailout represented an effort to push back against the unitary executive. And many expect Congress will aggressively move to reassert its authority in the early days of an Obama administration.

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Despite early promises of openness, the Bush administration has drawn widespread criticism for its stark lack of transparency. Rates of declassification under the Bush White House nosedived to a fraction of what was done under the Clinton administration, while new classification of documents reached a 15-year high. Open government watchdogs cite numerous examples of excessive secrecy, among them: an October 2001 memo by then-Attorney General John Ashcroft reversed nearly 40 years of presumed openness under the Freedom of Information Act; an executive order allowed current and former presidents to delay the release of presidential papers indefinitely; widespread use of “Sensitive But Unclassified” markings prevented public release and interagency sharing of material; and the administration refused to share with Congress information pertaining to, among other areas, the Vice President’s National Energy Policy Development Group. The cost to taxpayers of securing government secrets reached a record $9.91 billion in 2007, according to the federal Information Security Oversight Office. Bush’s ex-White House press secretary Scott McClellan decried his former boss and the administration’s inner circle for being “the most secretive administration” in the history of Washington. The White House press office did not respond to a request for comment, but Bush administration officials have in the past argued that the 9/11 attacks and ensuing war on terrorism demanded greater information security and secrecy.

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During the 2008 presidential campaign, then-candidate Barack Obama vowed to “turn the page on a growing empire of classified information and restore the balance we’ve lost between the necessarily secret and the necessity of openness in a democratic society.”

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In elementary school, American children learn that the U.S. Constitution dictates a precise and cumbersome process through which a bill becomes law. When a bill is passed by both the House of Representatives and the Senate, the president may either let it become law or veto it. The Executive Office of the President under George W. Bush, however, often tried to create a third option: changing the meaning of the legislation via a “signing statement,” attached while signing the bill into law. Bush is not the first president to employ signing statements, but no chief executive has used them this aggressively; a Boston Globe report in 2006 determined that Bush had issued such statements “to more than one of every ten bills he has signed,” claiming “the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution.” According to the nonpartisan Congressional Research Service, 78 percent of Bush’s signing statements raised constitutional objections. A bipartisan task force of the American Bar Association warned that, to protect the constitutional separation of powers, “the president and those who succeed him [should] cease the practice of using presidential signing statements to state his intention to disregard or decline to enforce a law or to interpret it in a manner inconsistent with the will of Congress.” The task force recommended that presidents instead simply veto legislation they deem unconstitutional. “Our legislation doesn't amount to anything if the president can say, ‘My constitutional authority supersedes the statute,’” Republican Senator Arlen Specter of Pennsylvania told Reuters. “And I think we've got to lay down the gauntlet and challenge him on it.” An investigation by the Government Accountability Office of 2006 appropriations legislation determined that six of 19 sample provisions addressed by Bush in his signing statements were ultimately not executed as written by Congress. The White House press office did not respond to a request for comment, but, in 2006, a spokesman defended the signing statements, arguing: "There's this notion that the president is committing acts of civil disobedience, and he's not. It's important for the president at least to express reservations about the constitutionality of certain provisions."

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Congressional committees have held hearings and some legislation has been offered to restrict the use of signing statements, but none have made it to the floor in either house.

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Article II of the United States Constitution, which covers the executive branch, makes six references to the vice president. And the Office of the Vice President received $5 million in executive branch funding in the 2008 budget. Yet Vice President Dick Cheney has reinterpreted the traditional role of his office, claiming not to be part of that branch. The dispute arose out of an attempt by the National Archives to fulfill its duties under presidential Executive Order 12958; the order directs the archives to establish a uniform, government-wide system for protecting classified national security data. The order further directs the archives to assure compliance with the order by conducting inspections of federal agencies and White House offices. But Cheney’s office blocked an archives inspection, arguing that it is not an “entity within the executive branch” and is therefore exempt from presidential executive orders. J. William Leonard, then-director of the National Archives Information Security Oversight Office, noted in a letter to the U.S. Attorney General that up until 2002 the Office of the Vice President had complied with the rule, and suggested that it should continue to do so. House Oversight and Government Reform Committee Chairman Henry Waxman charged that the decision was part of a broader effort by the Vice President’s Office to avoid oversight and accountability. "I question both the legality and wisdom of your actions,” Waxman wrote in a letter to the vice president. The White House press office did not respond to a request for comment, but, in 2007, a spokeswoman defended the Vice President, noting: “He's not exempt from following the laws of the United States. He's exempt just from this reporting requirement in this particular executive order.”

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In September, U.S. District Court Judge Colleen Kollar-Kotelley, ruling in a lawsuit brought by Citizens for Responsibility and Ethics in Washington, issued a temporary injunction ordering the vice president to preserve all of his official records. That lawsuit is continuing and could yield a permanent order. In July 2007, Democratic Senator Dick Durbin of Illinois, chairman of the Appropriations Subcommittee on Financial Services and General Government, proposed that the Senate suspend funds for the Office of the Vice President until it complied with Executive Order 12958. The attempt passed on a 5-4 party-line vote in subcommittee, but the funds were restored on a 15-14 vote in the full committee. The Office of the Vice President continued to refuse to comply with the order and, since 2007, the Information Security Oversight Office has not bothered to request the information from them. On October 22, 2008, Republican presidential nominee John McCain said in an interview, “I don’t agree with Dick Cheney’s allegation that he’s part of both the legislative and the executive branch.”

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Though federal records laws make clear that the official records of the president and vice president are public and must, in general, be preserved, the Bush administration has not always done so. The Executive Office of the President must document all “activities, deliberations, decisions, and policies” that reflect the president’s duties, says the Presidential Records Act of 1978, and the president may dispose of records “that no longer have administrative, historical, informational, or evidentiary value,” only after clearing the decision with the Archivist of the United States. Rather than using government e-mail addresses, which would be archived automatically, 88 Bush administration officials were given Republican National Committee (RNC) e-mail addresses. Of those, the RNC preserved no e-mails for 51 officials and preserved only some of the e-mails of the 37 other officials. By using these external addresses for official business, White House officials circumvented requirements of both the Presidential Records Act and the Federal Records Act and, as a result, oversight committees, litigators, and historians will be denied a chance to get a full and accurate view of the administration’s actions and decision-making processes. The White House press office did not respond to a request for comment, but, when this failure came to light, the White House conceded the error: “I will admit it,” spokeswoman Dana Perino said. “We screwed up.”

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The House Committee on Oversight and Government Reform continues to investigate the missing e-mails. A federal judge has ordered the White House to preserve all hard drives, tape backups, servers, and other media that may contain the missing e-mails, in response to a lawsuit by the National Security Archive, an independent research institute at The George Washington University.

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