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Power and Constraint

Harvard Law professor Jack Goldsmith has written a very informative, admirably researched book entitled Power and Constraint: The Accountable Presidency After 9/11.  Goldsmith tackles an intriguing puzzle:  despite a lot of 2008 campaign rhetoric, the Obama Administration has in fact continued (and in a few instances expanded) the Bush Administration’s policies and strategies in the “War on Terror” (and the—liberal—contingents that had sharply criticized the Bush Administration have largely sat still for it).  In addition to the usual suspects—such as the fact that the world always looks a lot different from the White House than it does on the campaign trail—Goldsmith identifies another factor: by the time President Obama took office, the Bush Administration had already changed the policies that had initially caused consternation and alarm. He attributes this largely to the effective operation of powerful accountability mechanisms, foremost including the (new) media and Inspectors General. By and large, Goldsmith concludes, we ended up in a pretty good policy place. The system worked.

Last week, the Federalist Society and AEI co-sponsored  an instructive and entertaining debate, moderated by C. Boyden Gray, and featuring Goldsmith, Neal Katyal (Georgetown Law School), Dana Priest (Washington Post), and Jeremy Rabkin (GMU Law School).

One can argue that Goldsmith’s view is too sanguine. (For a very different take, see, e.g., Mary Dudziak’s War Time.) I don’t know enough about this stuff to have an independent view. I do worry, though, about a problem outside the scope of Goldsmith’s fine book and the FedSoc/AEI debate—the cross-sterilization of checks on government power, in times of a war that seems to be permanent and, or but, of little immediate consequence to the daily lives of most Americans. (I don’t mean to belittle the sacrifices of soldiers and their families, or the victims of terror attacks; what I mean is that we have nothing that compares to the wholesale mobilization of World War II or the agitation that accompanied Vietnam.) Perhaps, the terror situation forces us to have government do dramatic things (from surveillance to targeted drone strikes in sovereign countries), in a highly discretionary and secretive fashion and on a permanent basis.  Increasingly, however, we are becoming accustomed to the same form of government in domestic affairs.

Here as there, we have laws that permit the executive to do virtually as it pleases. Sarbanes-Oxley, Dodd-Frank, and Obamacare are Patriot Acts for the domestic economy, except that they lack a sunset provision. Here as there, the decisions are made inside vast bureaucracies, based on closely guarded information. (Dodd-Frank contains a mini-Official Secrets Act, regarding information that might prompt federal authorities to shut down financial institutions.)  Here as there, we are being assured that the measures are necessary to avert exceptionally grave threats to our well-being. Here as there, though, one must fear that a gargantuan administrative apparatus will prove indestructible.  And here as there, the apparatus tends to fight the last war. Obamacare’s uninsured are yesterday’s problem. Tomorrow’s health crisis is bankruptcy, which the statute hastens.  Dodd-Frank does next to nothing to avert another financial crisis: it will come—from an unexpected quarter, as it always does.

In domestic as in War-on-Terror affairs, one can argue that an accountability industry stands ready to keep things from getting out of hand. Here as there, though, one has to worry about that industry—its bias (see Rabkin’s debate remarks), its effectiveness, and (as it were) its accountability. In some sense, the health insurance lobby is holding the administration “accountable”—after it managed to have the individual mandate written into Obamacare, and behind closed doors. In like fashion, the “Big Four” accounting firms are monitoring the SEC and the Public Company Accounting Oversight Board—after they managed to create the PCAOB as a form of cartel maintenance and enforcement, operating at several removes from any political control. Multiply that m.o. 15,000 times, and your heart begins to sink.

The Beltway swamp was not the Founders’ idea of “checks and balances.”  What they had in mind was institutional controls, exercised by duly constituted political bodies. Where are they?

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