An article from the symposium issue of the Indiana Law Journal on "War, Terrorism and Torture: Limits on Presidential Power in the 21st Century." The symposium was convened by the American Constitution Society for Law and Policy and the Indiana University School of Law–Bloomington on October 7, 2005.

In commenting on [Neil] Kinkopf’s article, Christopher Schroeder [… offers] strong praise, in particular for Kinkopf’s criticism of “loaded dice” statutory interpretation rules. [He] then proceed[s] with additional critiques and potential reform that supplement Kinkopf’s efforts to encourage the proper allocation of federal power. Schroeder endorses Kinkopf’s prescriptions for the courts and support for the reciprocity/shared powers approach. Schroeder cautions, though, that reform of the courts alone cannot remedy the federal power imbalance. He discusses the paucity of judicial precedent rejecting presidential assertions of exclusive authority and then identifies conditions, beyond deferential judicial review, that help maintain “a regime of de facto exclusivity.” Presidents dominate military and foreign affairs because they possess the means to do so, as well as the intelligence capacity to supply the reasons.

Schroeder identifies specific conditions that contribute to imbalance in favor of the presidency: the modern development of an elaborate, largely secret national security bureaucracy, large standing armed services commitments, and a Congress deterred from imposing effective constraints by political incentives, especially incentives in favor of legislative compromise and against the assumption of responsibility (and potential blame) that instead can be left to the President. Schroeder, whose scholarship benefits from his high-level experience in both the executive and legislative branches, concludes with the wise counsel that “the health of the constitutional system” depends on reformation of the political branches, as well as the courts. Multiple lines of further inquiry follow readily from Schroeder’s call for governmental reform.” –From Forword by Prof. Dawn Johnsen