After The Rule Of Law

A new study contends that the Constitution’s structural attempt to limit executive power is now historically and practically outdated. Normatively, an unconstrained executive can deliver more of the goods we need and when we need them. John Samples offers a helpful intervention to such advice.

The Executive Unbound: After the Madisonian Republic is less disturbing than its subtitle suggests. The president is not really unbound according to Eric Posner and Adrian Vermeule. Similarly, the authors’ affinity for the ideas of Carl Schmitt, a philosopher of law who embraced National Socialism, relies on his respectable views published prior to the end of the Weimar Republic. The book is thus more conventional than its marketing might suggest. Even so, its argument should be disturbing enough for those who embrace a Madisonian faith in constitutionalism and the rule of law.

Posner and Vermeule reject liberal legalism which “holds that representative legislatures govern and should govern, subject to constitutional constraints, while executive and judicial officials carry out the law.” (3) Liberal legalism makes the executive a second-rate power in the world of constitutional government, a servant of legislative will and subject of judicial judgment. A liberal executive largely lacks discretion. It certainly does not dominate the other branches of the American government.

The authors argue liberal legalism does not correspond to the world in which we live. We live in “a regime of executive-centered government, in an age after the separation of powers, and the legally constrained executive is now a historical curiosity.” (4) Why do we have executive-centered government? First, Congress delegates legislative authority to the executive. The executive agency both makes and implements policies. Second, emergencies arise that demand action. The president is far more adept at acting quickly and resolutely in response to such crises. (7) What Congress cannot or will not do, someone must undertake and that someone is the president and his administration.

Here Schmitt enters the picture. He was the first to discern that the rise of the administrative state had weakened legislatures and strengthened the executive. The legislature (and the judiciary) enacted and enforced general rules that Schmitt saw as “oriented to the past” whereas voters now demand public management of the economy which is oriented toward the present and future. This orientation requires prompt action, a virtue of executives.   Both legislature and courts play “an essentially reactive and marginal role” in everyday governing. In crises, the executive governs alone, and legality matters little. (4-5) Only the executive (and the administrative apparatus) can act legitimately, understood as responding to “the public’s sense of the necessities of the situation.” (54) The authors pursue the idea of executive capacity and legitimacy throughout the work, especially with regard to the Bush administration’s responses to both September 11th and the financial crisis of 2008.

Posner and Vermeule contend laws have not and cannot restrain the executive. The Constitution has not seriously limited congressional delegation or presidential power. Subject-specific laws like the War Powers Act of 1973 have become dead letters with no constraining force. The body of law known as the Administrative Procedures Act (APA) appears more successful than subject-specific laws. But that success depended on its flexibility which “allows government to do what government needs to do when it needs to do it.” (85) The APA thus does not actually constrain the executive. The authors also devote a skeptical chapter to the claim that “international legal liberalism” can limit executive power.

Nonetheless, the executive “is in some ways more constrained than ever before.” (5) They argue that “politics and public opinion” limits executives or “at least block the most lurid forms of executive abuse.” (5) Elections are an important part of these limits, but the authors might have made more of continual polling and the focus of the political elite on a president’s approval ratings. The extensive wealth and education of the American public preclude a president of truly unbounded power.

Because the executive is constrained, if not by law, the authors decry “tyrannophobia,” an unjustified fear of dictatorship spread by critics of executive power. They contend this fear is costly. Presidents could accomplish great good by acting without legal or political constraint in some cases. “Tyrannophobia” prevents some of these beneficial results without gaining security against executive abuses of power. Yet a president exercising broad discretion for the national interest will often act in secret. How then could public opinion control the executive?

This is a book about politics as it is. The defender of the rule of law may still argue that the executive should be bound by the Constitution or other legitimate laws. The authors believe such normative criticisms are irrelevant. They note that “ought implies can”; if politics cannot be otherwise than it is, saying the executive should be subject to law is beside the point.

Here the “can” begs a question. The view that the world cannot be otherwise is more assumed than defended in these pages. Oddly, the authors believe that politics should and could change. They argue that citizens should put aside their undue fears of tyranny in order to achieve goods that only an unbound executive can provide. Normative argument on that issue is not futile.

The authors also overlook some evidence that complicates their thesis. Consider the Article I war powers. Presidents frequently claim the authority to initiate war at their discretion and absent congressional approval. If we examine what presidents have done in the post-Cold War era, rather than what they say they can do, we find that presidents have sought congressional approval for each of the three major wars the nation has fought. In other words, presidents have acted according to law.

This period raises other doubts about The Executive Unbound. The authors argue the president is bound by public opinion not law. However, over the last two decades, polls indicated that significant majorities wanted the president to seek approval for initiating major and limited wars. Pace Posner and Vermeule, we do not face a choice between public opinion and law. On the crucial issue of declaring war, public opinion has supported law. It may be, of course, that the Constitution actually shapes public opinion on this question.

In other cases, neither public opinion nor law matter. Since 1990, presidents have initiated several limited wars including most recently, a successful effort at regime change in Libya. The public preference for congressional approval of war existed during each of these more limited engagements. Many surveys showed that a plurality or majority of the public did not support these wars. Yet both Presidents Clinton and Obama ignored such sentiment without paying a political price. In declaring limited wars, presidential power seems unconstrained by law or explicit public opinion, contrary to the authors’ argument that the public ultimately controls the executive.

The authors devote much space to the financial crisis of 2008. The 2008 case, however, undermines their thesis. The Treasury Department and the Federal Reserve did dominate policymaking during this crisis. However, the leaders of both sought approval from Congress to spend money shoring up banks. Presumably Secretary Hank Paulson and Fed Chairman Bernanke sought congressional approval because the Constitution assigns the power of the purse to Congress. Moreover, as the authors realize, the Federal Reserve is not really a part of the executive. (58-9) Yet it was the Fed acting as lender-of-last-resort that ultimately offered the most significant public response to the crisis. The authors appear wrong about one of their major case studies: it was a hybrid institution, not the executive, that was unbound by law in response to a crisis. The importance of the Fed also deepens the republican problem. The president may be limited by public opinion. Is the Fed?

In general, the authors, both of whom are law professors, are too true to their calling; they offer a work of relentless advocacy for the superior institutional capabilities of the executive branch. We read much about the failings of the courts or Congress and the strengths of the executive. In typical political fashion, the authors ascribed concerns about the abuse of executive power to mental illness. But history suggests such concerns are reasonable.

Defenders of the rule of law should take up the challenge of reading The Executive  Unbound. The reader is left, like a jury, to wish for a defender of the rule of law to make an equally one-sided case for its defense. That argument would count the costs as well as the benefits of executive discretion. This book does not offer a balanced account of American institutions. It is best read along with books defending the rule of law, and some history of the presidency prior to 2001. Those arguments and that history might suggest skepticism about this work’s calm acceptance and occasional celebration of the end of the rule of law.