by Eric A. Posner and Adrian Vermeule. New York: Oxford University Press, 2007. 328pp. Cloth. $29.95/£17.99. ISBN: 9780195310252.
Reviewed by Louis Fisher, Specialist in Constitutional Law, Law Library, Library of Congress. Lfisher [at] loc.gov.
Eric A. Posner and Adrian Vermeule state their theme clearly and crisply in the first two sentences of the Introduction: “When national emergencies strike, the executive acts, Congress acquiesces, and courts defer. When emergencies decay, judges become bolder, and soul searching begins” (p.3). Posner and Vermeule identify six periods of emergencies in American history: the Quasi-War with France accompanied by the Sedition Act; the Civil War; World Wars I and II; the early cold war; and the post-9/11 period. They cite one other possible entry: the civil unrest during the Vietnam War.
Posner and Vermeule identify two schools of thought. The first concludes that emergencies are periods of “political and constitutional failure.” Emergencies cause panic, government abuses its power, and political leaders implement “irrational policies without sufficient deliberation.” Given short shrift in these periods are the traditional constitutional values of equality before the law, democratic deliberation, due process, and political freedom. Exaggerated weight is placed on security (p.4).
They opt for a second school, one that regards emergencies as periods of “political and constitutional success.” For them, the executive branch is the only institution of government with the resources, power, and flexibility to respond to threats of national security. Civil liberties are appropriately compromised because they “interfere with effective response to the threat.” They maintain that the civil libertarian view “rests on implausible premises and is too weak to overcome the presumptive validity of executive action during emergencies” (p.5).
These themes are explored in subsequent chapters that deal with tradeoffs during emergencies (security vs. liberty), whether fear and panic cause decisionmakers to exaggerate threats and neglect civil liberties, and the degree to which the government penalizes minorities during periods of emergencies (the democratic failure theory). Other issues are dealt with, including the possible existence of a ratchet effect that permanently pushes power to the government long after an emergency has ceased. They find no such lasting effect.
Throughout the book, Posner and Vermeule remain comfortable with their position that power in emergencies is appropriately placed with the Executive. They wrote the book “to restrain other lawyers and their philosophical allies from shackling the government’s response to emergencies with intrusive judicial review and amorphous worries” about the consequences of what executive officials do in the face of [*697] threats (p.275). They criticize academic lawyers for being “reflexively hostile to executive power in matters of national security” without ever having to be responsible for governmental decisions (p.274).
That is an interesting point. If academic lawyers are insufficiently experienced and expert to judge the merits of decisions made by Presidents and executive officials in time of emergency, what qualifies Posner and Vermeule from their positions as law school professors to offer advice on matters of national security? They are aware of that issue and deal with it frequently.
First, as noted earlier, they reject the civil libertarian views as “too weak to overcome the presumptive validity of executive action during emergencies” (p.5). Why is executive power the “presumptive” position? Why start there? Why wouldn’t it be checks and balances, separation of powers, and the need to avoid concentration of power? Those are core US constitutional values, but Posner and Vermeule never explain why those values are presumptively subordinated to executive power. The framers drafted a constitution in a time of emergency and could have decided to concentrate power in the Executive. They could have embraced William Blackstone’s theory of prerogative that placed with the Executive the entire domain of external affairs. Clearly they did not.
Posner and Vermeule never review the choices made by the framers from 1776 to 1787. They do not look back to the Philadelphia Convention, the Federalist Papers, or the text of the Constitution. They do not reflect on John Jay’s warning in Federalist No. 4: “absolute monarchs will often make war when their nations are to get nothing by it, but for purposes and objects merely personal, such as a thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans.” Executives engage in wars “not sanctified by justice or the voice and interests of the people.” Was Jay and the other framers only worried about “absolute monarchs” and rested easy with concentrating the war power in the President? The record is clearly No. The framers vested none of the Blackstonian prerogatives in the President. Instead, they placed them either exclusively in Congress or shared them between the Senate and the President (making treaties and appointing ambassadors).
The authors never get near this material. Their book does not treat the United States as having a unique constitution with special values, including checks and balances. They present a general thesis that seems suited to any nation: Germany, India, China, Russia, Argentina, Nigeria, and others. Occasionally they cite a Supreme Court decision, but the values wrestled with by the framers are not in the picture. It would be possible to argue that those were suitable values in the eighteenth century but not in the twenty-first century, but the authors do not do that. The US Constitution is essentially ignored as a framework. Once you do that, it is but a short step to restoring Blackstone and prerogative power. [*698]
Posner and Vermeule are aware that their warning to academic lawyers should apply to them. They say they refrain from making judgments about matters beyond their areas of competence. Thus: “We emphasize that, as lawyers, we do not have any expertise regarding optimal security policy, and so we do not try to argue for or against any particular policy” (p.6). They have “no opinion about the merits of particular security measures adopted after 9/11 . . . We hold no brief to defend the Bush administration’s choices, in general or in any particular case” (p.7). They advise judges to defer to executive decisions “though we have no view about whether these policies are correct” (p.94).
Why this level of academic modesty? As law professors, is should not have been difficult for Posner and Vermeule to decide whether detainees held at Guantánamo were, or were not, within the jurisdiction of federal courts. Did the Court’s 1950 decision in EISENTRAGER cover the circumstances at the naval base? Some elements of EISENTRAGER applied and some did not, and so held the Court in 2004 (RASUL). The authors say that the Court “very dubiously” overruled the 1950 decision in part (p.258). Why dubious? The detainees in the 1950 case had been tried and convicted; the detainees at the naval base had never been brought to trial. If Posner and Vermeule have the competence to regard the Court’s reasoning as dubious, why couldn’t they apply those same analytical skills to the administration’s reasoning in briefs and oral argument?
Any observer would concede that a number of actions by the Bush administration have been poorly conceived and analyzed. If Congress and the courts reflexively defer to every executive action, administration decisions are likely to be more abusive and conceptually deficient. The obligation “to make a case” (either in court or in public) puts pressure on administration officials to upgrade their arguments.
The authors frequently state their inability to make judgments about current and past actions. As to the detention of more than 100,000 Japanese-Americans during World War II, they “do not defend the internment order on the merits, because we lack the necessary expertise to judge, even in hindsight, whether the action was justified, all things considered” (p.113). On the other hand, they call the Court’s 1944 decision in KOREMATSU upholding the detention as “notorious,” without explaining why (p.121). They inconsistently mix neutral deference with normative criticism. Similarly, they say that President Lincoln’s suspension of habeas corpus at the start of the Civil War was “notorious” (p.141). Why? They do not explain the basis for their conclusion. Do they have the necessary expertise to make that judgment? Is it better to be agnostic on such matters? If so, why favor the concentration of power in the Executive and argue that the country is in better hands when that power is unfettered by legislative and executive constraints? On what basis is that judgment made? The values that drive in that direction are never identified. [*699]
Regarding the role of courts, Posner and Vermeule say that judges deciding constitutional claims during times of emergency “should defer to government action so long as there is any rational basis for the government’s position” (p.12). Are they, as academics, able to determine when there is and is not a rational basis? Are judges? For the latter, the answer is apparently No. Judicial review in times of emergency “cannot improve matters, because there is no reason to think that courts possessing limited information and limited expertise will choose better security policies than does the government” (p.12).
First, courts do not choose security policies. They decide that detainees have some basic rights to be heard (HAMDI), that President Truman lacked authority to seize steel mills (YOUNGSTOWN), and the President has no inherent authority to create military commissions (HAMDAN). Second, even the Bush administration conceded that they had to present “some evidence” to justify their actions in court. They did not attempt to stiff-arm the judiciary entirely. Third, there is no reason to think that the Executive has such superior information and expertise that the other branches should automatically defer.
Nowhere in the book is there any exploration of the deficiencies of presidential decisions in Korea, Vietnam, and Iraq II. Far from displaying technical mastery, the record is one of miscalculation, deceit, and incompetence. Strong words, perhaps, but what else can one say about Harry Truman’s belief that he could go north in Korea without bringing in the Chinese, that Lyndon Johnson would escalate the war in Vietnam on the basis of a second attack in the Tonkin Gulf that never happened, or that George W. Bush would make six claims of Iraqi terrorism and WMDs and have each claim patently false (the Iraq-al Qaeda link, aluminum tubes, uranium ore, drones, mobile labs, and chemical and biological weapons). Why with that record over a half-century would anyone defer to assertions of executive expertise?
Posner and Vermeule write: “Ideally, the government chooses the least costly means of defusing the threat” (p.18). No. It is often the most costly and least effective means. At times the authors admit this. Judges know that “executive action may rest on irrational assumptions, or bad motivations, or may otherwise be misguided.” Still, that knowledge “is largely useless” to judges because they “cannot sort good executive action from bad” (p.18). The Supreme Court could sort out the unconvincing argument for keeping detainees in Guantánamo outside the jurisdiction of federal courts (RASUL). It could decide that the claim of “inherent” presidential power to create military commissions did not exist (HAMDAN). The press and congressional committees could decide that the claims of Iraqi WMDs presented to the world were empty. In time of emergency, national security is weakened when all sectors of government and the public passively and uncritically accept executive actions and justifications. [*700]
HAMDAN v. RUMSFELD, 126 S. Ct. 2749 (2006).
HAMDI v. RUMSFELD, 542 U.S. 507 (2004).
JOHNSON v. EISENTRAGER, 339 U.S. 763 (1950).
KOREMATSU v. UNITED STATES, 323 U.S. 214 (1944).
RASUL v. BUSH, 542 U.S. 466 (2004).
YOUNGSTOWN SHEET AND TUBE CO. v. SAWYER , 343 U.S. 579 (1952).
© Copyright 2007 by the author, Louis Fisher.