But without the events of September 11, 2001, and the sequence that followed, the landscape of constitutional law would look substantially different today.
In a fresh essay for Civitas Outlook, I seek to link today’s constitutional framework to that pivotal day from a quarter of a century ago.
Every generation has a defining moment. For my generation, it was September 11, 2001. Yet a quarter of a century later, more than 30 percent of Americans have no living memory of 9/11. The battles in Afghanistan and Iraq have largely wound down, Guantanamo Bay is largely closed, and Ground Zero serves as a museum. Young law students, in particular, might even suppose that this historical event has little bearing on today’s law. That is not quite the case. Indeed, but for September 11, 2001, and the events that followed, constitutional law would likely be unrecognizable today.
Perhaps the most evident link concerns the Supreme Court’s rulings on executive authority:
The seeds planted by Bush’s nominations in 2005, and nourished by Free Enterprise Fund in 2010, would begin to sprout in 2020. In Seila Law LLC v. Consumer Financial Protection Bureau, Chief Justice Roberts, once again writing for the Court, held that the president must have the power to remove the single head of that major financial regulator. Over the next six years, the Court would expand the doctrine in two landmark decisions that reaffirmed the strength of executive power.
Trump v. United States broadened the scope of presidential immunity beyond the Nixon era. And Trump v. Slaughter ultimately overruled Humphrey’s Executor v. United States.
None of these cases were even imaginable in 2001, let alone in 2005 when Roberts and Alito joined the Court. Yet a direct line can be traced from the actions taken by President Bush in the immediate wake of 9/11 to the demise of the century-old Humphrey’s Executor. Although Bush’s policies against terrorism would not endure in court, the expansion of presidential power after 9/11, and the judges who followed, helped entrench the unitary executive theory over the next twenty-five years. Indeed, these jurists also sparked a transformation in substantive due process with Dobbs, the Establishment Clause with Kennedy v. Bremerton School District, the Equal Protection Clause with Students for Fair Admissions, and more. I’ve described this succession of decisions as the conservative equivalent of hitting a full house after six decades of folding.
It’s easy to forget the event itself, but the consequences of that day are forever etched in memory.
I’d also point to Justice Kavanaugh’s excellent interview in USA Today on the subject of 9/11:
The message Bush communicated to his staff on Sept. 12 was: “This will not happen again. This will never happen again in the United States,” Kavanaugh recalls.
“For him … every day was Sept. 12 for the next seven-plus years. Even when he was engaged in other matters and handling all the duties of government — economic negotiations, addressing the rest of the world — he felt a deep obligation to ensure it never happened again,” Kavanaugh said. “And if something did occur, people would ask, ‘Bush, why didn’t you prevent this?’ It was a tremendous burden for him to bear.”
…
Having witnessed 9/11 up close, the weight it placed on the president, and the country’s ability to recover, gave Kavanaugh perspective during difficult moments.
“People talk about: ‘This is a crisis and that is a crisis. That was a crisis,'” he said. “America conducts numerous legal and policy debates, which matter. That is a different level from what I think we felt on the night of Sept. 11 and the morning of Sept. 12.”
Kavanaugh understands the point.
