Posner Eric A. - The executive unbound: after the Madisonian republic

The Executive Unbound

After the Madisonian Republic

Eric A. Posner
Adrian Vermeule

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Library of Congress Cataloging-in-Publication Data
Posner, Eric A.
The executive unbound: after the Madisonian republic / Eric A. Posner, Adrian Vermeule. p. cm.
Includes bibliographical references and index.
ISBN 978-0-19-976533-1 (hardcover: alk. paper) 1. Executive powerUnited States. I. Vermeule, Adrian. II. Title.
KF5050.P67 2011
342.7306dc22 2010023201

Printed in the United States ofAmerica
on acid-free paper

The Executive Unbound

I n the administrative state, what if anything constrains the enormous power of the executiveincluding both the presidency and the administrative agencies? In mainstream Anglo-American legal theory, the answer to this question emerges from a tradition that we will call liberal legalism. Liberal legalism cannot be defined in a sentence; it is a complex of theoretical views and institutional commitments related by a family resemblance, including elements of philosophical and political liberalism, constitutionalism, and deliberative democracy. But the simplest version of liberal legal theory holds that representative legislatures govern and should govern, subject to constitutional constraints, while executive and judicial officials carry out the law. The basic answer that liberal legalism supplies, then, is that law does and should constrain the executive.

More complex and realistic versions of liberal legal theory attempt to modify this picture to account for the facts of the modern administrative state, in which massive delegation to the executive and frequent crises threaten to relegate legislatures and courts to the sidelines. The twin problems of delegation and emergencies drive a great deal of liberal legal theory, which struggles to find conceptual devices and institutional mechanisms that can square liberalism's commitments, largely worked out by the end of the nineteenth century, with the accelerating development of administrative institutions in the twentieth and twenty-first. Liberal legalism is intensely anxious about executive power, and sometimes goes so far as to define tightly constrained executive power as an essential element of the rule of law.

we argue that in the modern administrative state the executive governs, subject to legal constraints that are shaky in normal times and weak or nonexistent in times of crisis.

Whereas Madison is an exemplar of liberal legalism, particularly in the domain of constitutional theory, we draw upon the thought of the Weimar legal theorist Carl Schmitt. We do not agree with all of Schmitt's views, by any means. To the extent Schmitt thought that democratic politics do not constrain the executive, or thought that in the administrative state the executive is not only largely unconstrained by law but also unconstrained tout court, we disagree. Indeed, to the extent that Schmitt thought this, he fell into a characteristic error of liberal legalism, which equates lack of legal constraint with unbounded power. But Schmitt's critical arguments against liberal legalism seem to us basically correct, at least when demystified and rendered into suitably pragmatic and institutional terms.

A central theme in Schmitt's work, growing out of Weimar's running economic and security crises in the 1920s and early 1930s, involves the relationship between the classical rule-of-law state, featuring legislative enactment of general rules enforced by courts, and the administrative state, featuring discretionary authority and ad hoc programs, administered by the executive, affecting particular individuals and firms. The nub of Schmitt's view is the idea that liberal lawmaking institutions frame general norms that are essentially oriented to the past, whereas the dictates of modern interventionist politics cry out for a legal system conducive to a present- and future-oriented 'steering' of complex, ever-changing economic scenarios. Legislatures and courts, then, are continually behind the pace of events in the administrative state; they play an essentially reactive and marginal role, modifying and occasionally blocking executive policy initiatives, but rarely taking the lead. And in crises, the executive governs nearly alone, at least so far as law is concerned.

In our view, the major constraints on the executive, especially in crises, do not arise from law or from the separation-of-powers framework defended by liberal legalists, but from politics and public opinion. Law and politics are hard to separate and lie on a continuumelections, for As the bonds of law have loosened, the bonds of politics have tightened their grip. The executive, unbound from the standpoint of liberal legalism, is in some ways more constrained than ever before.

We do not claim that these political constraints necessarily cause the executive to pursue the public interest, however defined, or that they produce optimal executive decision-making. We do claim that politics and public opinion at least block the most lurid forms of executive abuse, that courts and Congress can do no better, that liberal legalism goes wrong by assuming that a legally unconstrained executive is unconstrained overall, and that in any event there is no pragmatically feasible alternative to executive government under current conditions. The last point has normative implications, because of the maxim Ought implies can. Executive government is best in the thin sense that there is no feasible way to improve upon it, under the conditions of the administrative state.

In what follows, we support these claims by discussing the major elements of the legal and political framework for executive government. Although we pay special attention to times of crisis, our thesis is not limited to those times. Crises are just the limiting case of extremely rapid change in the policy environment, and thus exacerbate the inability of law to constrain the executive, but the underlying dynamics operate in normal times as well. In Schmittian terms, legality and legitimacy diverge in times of crisis, and legitimacy prevails. This divergence merely exposes that legitimacy rather than legality is the main determinant of authorityand of powerin the administrative state, so the fact that legality and legitimacy coincide in normal times does not mean that legality is ever important in its own right.