THE EXECUTIVE UNBOUND: AFTER THE MADISONIAN REPUBLIC
THE EXECUTIVE UNBOUND: AFTER THE MADISONIAN REPUBLIC, by Eric A. Posner and Adrian Vermeule. New York: Oxford University Press, 2011. 256pp. Cloth $29.95. ISBN 9780199765331.
Reviewed by Graham G. Dodds, Department of Political Science, Concordia University, Montreal. g.dodds [ at ] concordia.ca.
Worries about the dangers of an overly strong presidency date to the founding of the United States and have been a mainstay of scholarship on the presidency and American constitutionalism for quite some time. Classic texts in this tradition include Constitutional Dictatorship by Clinton Rossiter (1948) and The Imperial Presidency by Arthur M. Schlesinger Jr. (1973), while recent contributions include Madison's Nightmare by Peter M. Shane (2009), The Constitution Under Siege by Christopher H. Pyle and Richard M. Pious (2010), and Presidential Prerogative by Michael A. Genovese (2011). Of course, these concerns are also expressed in popular media, where liberal criticisms of George W. Bush’s avowedly energetic presidency are now echoed by conservatives who perceive Barack Obama as a despot bent upon eradicating various basic liberties. Indeed, a recent Wall Street Journal editorial opined that the alleged constitutional excesses of the Obama Administration have ironically had the salutary effect of reminding Americans of the founders’ wise system of constitutional limits.
In The Executive Unbound, law professors Eric A. Posner (Chicago) and Adrian Vermeule (Harvard) address this same issue but come to a radically different conclusion: strong presidentialism is inevitable and in fact desirable, so we should stop decrying it and just accept it. Posner and Vermeule contend that the Madisonian system of checks and balances is “broken” (p.15) and “obsolete” (p.17), and that executive governance is “inevitable” (p.16) and even beneficial, as “the erosion of checks and balances has promoted national welfare” (p.121). In essence, they proclaim, the Madisonian republic is dead, long live the president!
After laying out their central claim in the Introduction, Posner and Vermeule turn to the workings of the Madisionian system in Chapter One. They say the problem is not so much that one or another president has acted too boldly, or that Congress and the Judiciary have failed to respond, rather it is that the system was poorly designed in the first place. In short, we should not blame the president or the other two branches, we should blame the founders. Every student of American politics is told that the Constitution provides each of the three federal branches with the motive and means of resisting encroachment, but the authors contend that Madison’s scheme never worked. In part, they say, this is because the system has “no general mechanism ensuring that the decentralized decisions of branches will produce the optimal level of checking” (p.23), that there is no invisible hand to ensure systematic coordination like prices in an ideal market. But it is also [*76] because the system’s shortcomings are especially pronounced in times of crisis. Posner and Vermeule approvingly note Carl Schmitt’s dictum that legislatures and courts always “come too late” to crises (p.19), such that only the executive can adequately deal with exigent circumstances like the 9/11 attacks and the 2008 financial meltdown.
In Chapter Two, Posner and Vermeule contend that liberal constitutionalism cannot furnish an adequate account of constitutional change, whether via formal amendment, interpretation, or Bruce Ackerman’s “constitutional moments” of higher lawmaking. As a result, there are occasional interbranch “constitutional showdowns” (p.68), which are resolved politically. The authors regard this as a failing of the system, on the grounds that it occurs “in a twilight world without clear or settled rules … far removed from the clear rule of law that is central to liberal legalism” (p.67).
In Chapter Three, Posner and Vermeule argue that legislative attempts to reign in executive excesses have been ineffective at best and counterproductive at worst. Presidents routinely flout the 1973 War Powers Resolution, and the authors find that several other post-Watergate laws were similarly ineffective or even enabled the very behavior that they sought to preclude. For example, they note that George W. Bush’s initial actions to block al-Qaeda’s finances were ironically justified in terms of a 1977 law that sought to prevent presidents from seizing private assets.
However, it is the 1946 Administrative Procedure Act (APA) that comes in for the toughest treatment here. Posner and Vermeule say that for proponents of liberal legalism, the APA offered the hope that the separation of powers doctrine could be brought to bear on the executive bureaucracy and thus keep the often independent actions of hundreds of agencies within the broader constitutional order. They contend that hope has not been realized, and they seem to think that no such law could really tame the modern administrative state. Following the work of legal theorist David Dyzenhaus, the authors claim that administrative law is necessarily shot through with various “black holes” and “grey holes” – areas of executive and administrative action that the liberal rule of law cannot contain. In short, “the administrative state has never been brought wholly under the rule of law; periodically, the shackles slip off altogether” (p.10).
In Chapter Four, Posner and Vermeule foreshadow the book’s conclusion and argue that even if constitutional norms and laws cannot constrain the executive, politics can. They invoke principal-agent theory and suggest the president can effectively serve as the people’s agent. However, their main point seems to be that politics can prompt presidents to exercise self-restraint: “the system of elections, the party system, and American political culture constrain the executive far more than do legal rules created by Congress or the courts; and although politics hardly guarantees that the executive will always act in the public interest, politics at least limits the scope for executive abuses” (p.113). Thus, the presence of these de facto constraints should render the absence of de jure constraints less troubling. [*77]
In Chapter Five, Posner and Vermeule examine and reject the view that if domestic liberal constitutionalism cannot constrain the president, maybe global liberal norms can. They briefly consider the nature of jus cogens norms of international relations, the International Court of Justice (ICJ), the International Criminal Court (ICC), and recent developments in alien tort litigation and the use of foreign and international law in U.S. constitutional interpretation, but they find that global liberalism is “evanescent” (p.16) or even nonexistent and thus offers no constraints for the contemporary presidency.
The concluding chapter examines the view that a presidency unconstrained by law is apt to be tyrannical. Posner and Vermeule do not share that view and instead contend that in the absence of effective legal constraints, the executive can still be constrained politically, resulting in a plebiscitary presidency accountable directly and only to the people. However, they seek to discredit the alternative view, and they undertake an empirical test of it, using data from 22 countries over a half century. They find that the fear of tyranny does not prevent the rise of tyranny. Instead, harkening back to Aristotle, they contend that the presence of a large and economically comfortable middle class is the best hedge against despotism. The authors then go a step further and assert that the costs of fearing executive power outweigh the benefits of harboring such concerns. Thus, the book concludes with the authors all but saying, “Don’t worry, be happy.”
As a scholar of unilateral presidential actions, I found myself simultaneously agreeing with many aspects of the authors’ diagnosis of the poor state of Madisonian constraints on the executive, yet resisting their conclusion to pragmatically accept this state of affairs as both inevitable and beneficial. By any measure, the presidency has become very powerful and has stretched constitutional limits to the breaking point, and the other branches have done a very poor job of responding to it, but that does not necessarily mean that it must be thus. Other believers in the desirability of Madisonian constitutionalism will likely have a similar reaction to the book’s conclusions.
In part, this may because the authors’ tone is somewhat polemical, or at least provocative. For example, when Posner and Vermeule deride the fear of presidential excess as “tyrannophobia” (p.14) and claim that is “overheated” (p.12), “overblown” (p.15), and “irrational” (p.187), some readers are apt to be defensive. When the authors suggest that arguing against presidential dictatorship may be not just ineffective but actually counterproductive, that response of being defensive may change to actively taking offense. One is reminded of Attorney General John Ashcroft’s remark to Congress three months after the 9/11 attacks that those who criticized the Bush Administration’s prosecution of “the war on terror” were abetting the terrorists: “To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America's enemies, and pause to America's friends. They encourage people of good will to remain silent in the face of evil.” Although the [*78] abrogation of basic constitutional protections was undoubtedly not the particular evil that Ashcroft was referring to, those abuses nevertheless became all too real. Indeed, at times, Posner and Vermeule seem to claim more than even the most zealous Bush Administration officials did; John Yoo and company seem like shy unambitious moderates in comparison. Why deny that the president is stepping over the line when you can boldly admit it, say that nobody can do anything about it, and claim that it is a good thing, too?
Posner and Vermeule’s embrace of presidential dominance is predicated on the view that the U.S. system is at times incapable of responding effectively, such that one must violate its constraints in order to succeed; in short, the only way to win is to play dirty. (Or as the Oakland Raiders used to say, “Just win, Baby!”) That cynical view belies a profound lack of faith in the very system that it purports to love and defend. The constitutional order has managed to survive for 223 years, so surely it can rise to the occasion without resorting to antithetical extra-legal short-cuts.
The authors’ contention that the other two branches are often disinclined to respond to presidential overreaching may be empirically correct, but that does not mean that they are incapable of responding to it. Congress may prefer to work slowly, but surely it can be roused to speedy action if the fate of the nation hangs in the balance. In terms of traditional checks and balances, Congress can rebuke an overly aggressive president in a variety of ways, from using its power of the purse (e.g., blocking Obama’s order to close Gitmo) up to and including impeachment and removal from office. Congress might form a standing joint committee on how to stop ceding its constitutional purview up Pennsylvania Avenue. Maybe the Judiciary can look past the political questions doctrine and realize that sometimes even the least dangerous branch can and should flex its muscles.
As the above points suggest, this book is likely to provoke considerable debate, but it seems unlikely to win many converts. Very few Madisonian academics will throw in the towel after reading this book and accept popular politics as the only check on executive excess. For defenders of the Constitution, there is no alternative but to redouble their vigilant oversight and to be prepared to call out even the most minor presidential transgressions, even when doing so weakens a president with whom they otherwise agree.
Ackerman, Bruce. 1993. We the People, Volume 1: Foundations. Cambridge, MA: Harvard University Press.
Dyzenhaus, David. 2006. The Constitution of Law: Legality in a Time of Emergency. Cambridge, MA: Cambridge University Press.
Genovese, Michael A. 2010. Presidential Prerogative: Imperial Power in an Age of Terror. Stanford, CA: Stanford University Press.
McGurn, William. Jan. 17, 2012. “Obama Brings Back the Constitution.” Wall Street Journal. [*79]
Pyle, Christopher H. and Richard M. Pious. 2010. The Constitution Under Siege: Presidential Power versus the Rule of Law. Durham, NC: Carolina Academic Press.
Rossiter, Clinton L. 1948. Constitutional Dictatorship. Princeton, NJ: Princeton University Press.
Schlesinger, Arthur M. Jr. 1973. The Imperial Presidency. Boston, MA: Houghton Mifflin.
Shane, Peter M. 2009. Madison's Nightmare: How Executive Power Threatens American Democracy. Chicago, IL: University of Chicago Press.
Copyright 2012 by the Author, Graham G. Dodds.