Are We Stuck with the Imperial Presidency?

1.

The separation of powers may be the foundation of our constitutional system, but does it still make sense today? James Madison famously argued that checks and balances are an essential bulwark for liberty; by setting branch against branch, the structure of our government minimizes encroachments on fundamental rights and encourages dialogue and deliberation. But as anyone who has tried to get anything done in Washington quickly learns, the separation of powers is also remarkably inefficient.

American scholars, politicians, and citizens have debated these issues for the entire course of the nation’s history. But now Eric Posner and Adrian Vermeule, law professors at the University of Chicago and Harvard, respectively, tell us that such questions are beside the point, because the separation of powers is just an illusion, a hoary relic of the past ill-equipped for today’s challenges. Executive power in the modern era, they maintain, cannot possibly be constrained by the legislative and judicial branches, or even by law itself, so we might as well get over it. And there is nothing to fear from an executive unbound by law, because the real checks on the president are political, not legal, and democracy, they believe, is in good condition in the United States. Liberals’ fears of executive tyranny are not only irrational but positively harmful. The authors’ message echoes the Department of Homeland Security’s early post–September 11 security alerts: the president is legally unfettered, but go about your daily business as usual.

Posner and Vermeule, two of the nation’s leading conservative legal academics, are hardly the first to notice that presidents have become much more powerful in the modern era.¹ Like others before them, they attribute this development largely to the growth of the administrative state, with its huge bureaucracies, and to the near-constant state of emergency in which modern American government now seems to work. In practice, the vast and complex matters subject to federal regulation require Congress to cede control to the executive, through broad delegation of authority to administrative agencies. Those agencies, a part of the executive branch, then exercise the powers of all three branches: promulgating rules, investigating violations, and adjudicating disputes. Members of Congress lack the experience and time to micromanage such diverse subjects as energy, finance, commerce, transportation, telecommunications, the environment, and immigration. And the executive vastly outnumbers the other branches; about 98 percent of the federal government’s nearly two million employees work in the executive branch.

Globalization exacerbates these trends, since the president is the nation’s primary voice abroad, and regulation increasingly requires coordination across borders. In emergencies, the executive’s characteristics of speed, flexibility, unified command, and secrecy are especially valued, so Congress tends to delegate broadly, and courts in turn typically defer to executive action.² Under these conditions, the authors maintain, it’s simply not feasible for the other two branches to keep effective tabs on what the executive is up to.

But where others view these developments as profound challenges to our constitutional democracy, Posner and Vermeule insist that they are inevitable and of little concern. They are inevitable, in their view, because there is only so much that law can realistically do to constrain executive action anyway, given the vast range of issues with which the executive branch deals and the need for flexibility and discretion in doing so. And they are of little concern because political constraints on the executive render the rule of law unnecessary. The real problem, according to Posner and Vermeule, is that liberal society’s irrational fear of tyranny makes it unwilling to grant to the executive the power it needs to operate effectively.

2.

While there are important elements of truth in the authors’ observations about growing executive power, they overstate their case, and the implications they draw seem perverse. As to inevitability, for example, Posner and Vermeule, borrowing freely from the right-wing German theorist Carl Schmitt and legal realists, argue that the law’s constraints are ineluctably undermined by what they call legal “black holes” (where no law applies) and “grey holes” (where law applies only in very general or vague terms). The Administrative Procedure Act (APA), for example, is designed to subject administrative agencies to judicial review. But it exempts from all review—and therefore subjects to a legal “black hole”—actions “committed to agency discretion.” This could include anything from CIA employment decisions to the closure of military bases. And even where judicial review applies, the authors characterize the APA’s standards of “good cause” and “arbitrary and capricious” as “grey holes,” providing only a “façade of lawfulness,” because their vagueness permits courts to defer to the executive rather than exercising meaningful review.

Posner and Vermeule contend that more specific statutory regimes have also failed to constrain the president. The War Powers Resolution, the National Emergencies Act, and the International Emergency Economic Powers Act, for example, all enacted after Watergate to rein in presidential action, have proved largely ineffectual. Presidents have repeatedly argued that the statutes do not apply. The Obama administration recently did so when it implausibly claimed that the War Powers Resolution—requiring congressional approval of any use of troops in “hostilities” that last more than sixty days—did not apply to the military intervention in Libya. And Congress has failed to exercise meaningful oversight even where such statutes call for it to do so.

All of this seems right, to a point. But ironically, Posner and Vermeule base their “legal realist” critique on an excessively formalist assessment of whether law constrains, looking almost entirely at statutory language on its face and at judicial decisions. They argue that legal standards are often manipulable, and that judges therefore often defer to the executive. But the fact that law usually does not dictate particular executive decisions—hardly a surprising revelation—does not mean that it does not constrain them. And in particular, it is misguided to look only at judicial decisions, for law operates outside the courts as well.

Thus, while the APA’s open-ended standards undoubtedly permit judges to defer to the executive, they do not require them to defer. Some judges will defer; others will not, as when the Supreme Court in 1983 reversed the National Highway Traffic Safety Administration’s repeal of a requirement for passive restraints in all new cars, or when the D.C. Circuit Court in 2008 rejected the Environmental Protection Agency’s rules for mercury emissions. The executive generally cannot know in advance whether court review will be strict or deferential, and that uncertainty itself has a deterrent effect on the choices it makes, even in the many cases that do not end up in court. In my experience, lawyers for the executive branch generally take legal limits seriously. They take an oath and have been trained to uphold the law. They know that claims of illegality can undermine their programmatic objectives. They cannot predict when they will end up in court and so try to avoid legal challenges. To focus exclusively on specific judicial decisions is to miss law’s daily operation outside the courts.

Similarly, to look only at enacted laws misses the checking role that legislators play through other means—such as holding oversight hearings, launching investigations, or simply requesting information about executive practices. The experiences of executive officials, who devote much of their time to compliance with legal mandates and to defending their agency’s actions in Congress and the courts, contradict Posner and Vermeule’s armchair claims that legislative and judicial checks are illusory.³ And President Obama, who has had to fight Congress—and has often lost—on virtually every initiative he has pursued, from economic reform to health care to Guantánamo’s closure, would certainly be surprised to learn that his power knows no limits.

The authors’ treatment of the role the Supreme Court played in cases challenging military detention and trial in the “war on terror” illustrates their inattentiveness to the many ways law operates below the surface of reported judicial decisions. They note that the Supreme Court did not decide a national security case until 2004, when it agreed to hear appeals from Guantánamo detainees and a US citizen held as “enemy combatants”; that the Court’s detention decisions largely addressed only threshold issues, such as whether Guantánamo prisoners had a right to seek court review; that the Court upheld President Bush’s authority to detain even an American citizen in military custody; and that only 4 percent of the Guantánamo detainees have been ordered released by any court. They are right to emphasize the limited nature of the Court’s decisions. But otherwise, their criticisms are unfair.

There is no evidence that the Supreme Court delayed its intervention. The Court took up the military detention cases as soon as they reached it in late 2003 and early 2004; it is hardly the Court’s fault that cases take time to make their way through the lower courts. Posner and Vermeule suggest that the Court’s May 2003 denial of review in a case challenging immigration hearings that were closed to the public reflected an unwillingness to intervene at an early stage in the crisis following September 11. In several hundred immigration hearings held in the attack’s aftermath, the public was barred from attending by order of Attorney General John Ashcroft, on the ground that the hearings might reveal information to terrorists. But the practice of secret immigration hearings had come to an end by the time the matter reached the Supreme Court, so the issue was effectively moot. As soon as an ongoing national security controversy reached it, just six months later, in November 2003, in an appeal of a decision denying Guantánamo detainees access to court, the Supreme Court granted review.

And the Court’s decisions were the opposite of deferential. In the Guantánamo cases, the Court rejected President Bush’s claims that his power to detain could not be reviewed by the courts at all; that the laws of war were inapplicable to al-Qaeda suspects; and that the president had unilateral authority to create military tribunals that departed from domestic and international law. On the matter of judicial review, it refused to defer to Bush even after Congress and the president acting together sought to deny that right.

While the Court sustained President Bush’s authority to use military detention for Yaser Hamdi, an American citizen, the decision hardly reflects supine deference. The Court limited its holding to the narrow circumstances presented, emphasizing that Hamdi was caught carrying a weapon on the Afghanistan battlefield as part of a Taliban regiment. Even so, the decision was sharply divided, 5–4. And the majority rejected President Bush’s claim that Hamdi was entitled to no hearing whatever, ruling that he must be given notice and a meaningful opportunity to respond before a neutral factfinder. Faced with those requirements, the Bush administration released Hamdi.

Whatever else one might say about these decisions, they refute Posner and Vermeule’s contention that judges are inevitably deferential during times of crisis. Moreover, the US Supreme Court was not alone. Courts in the United Kingdom, Canada, Germany, Israel, as well as the European Court of Human Rights, have all actively reviewed and overturned counterterrorism measures since September 11.

It is true that very few detainees have been released from Guantánamo as a direct result of a court order. In fact, the Obama administration has had a 100 percent success rate in appeals of district court decisions granting habeas relief to detainees; one could therefore say that no one has actually been released by court order. But with or without release orders, it was litigation that brought about virtually every change for the better at Guantánamo. Before the Supreme Court agreed to take up the Guantánamo cases, the Bush administration position was that all the detainees were the “worst of the worst,” that none deserved any hearing of any kind, that their identities were a secret, that lawyers could not contact them, and that the detainees could be subjected to cruel and inhuman interrogation as a matter of “military necessity.”

Once the Supreme Court agreed to hear the first Guantánamo appeal, in November 2003, everything changed. Suddenly the administration began providing hearings for detainees, and identifying who was held there. Lawyers were eventually allowed to represent the detainees. And ultimately, the Bush and Obama administrations released over 600 of the 779 men once held there. None of that would have happened without litigation, which impelled the executive to clean up its act in order to appear more reasonable in court, and focused international attention on the legality of the camp practices. When lawyers were able to get to the clients and to tell their stories, public opinion changed dramatically. So while it is true that public opinion and international pressure, more than formal legal decisions, were crucial in prompting change at Guantánamo, litigation was the catalyst. Legal claims provided the rallying point for political demands, and together law and politics effectively checked the president. Posner and Vermeule’s formalist focus leads them to dismiss the litigation, the central act in this ongoing controversy, as a mere “sideshow.”

3.

Posner and Vermeule’s most novel—and least persuasive—claim is that diminished legal control of executive power need not concern us because political constraints are enough. As they put it, “liberal legalism’s essential failing is that it overestimates the need for the separation of powers and even the rule of law.” They maintain that we don’t need the rule of law because we have what one might call the “rule of politics.” Presidents must always worry about the next election. And because effective leadership demands credibility, presidents will voluntarily limit themselves in order to buttress their legitimacy (by appointing Cabinet officers from the other party, establishing independent commissions, etc.). Thus, even if the modern president is free of legal limits, he is sufficiently constrained by politics.

But while Posner and Vermeule adopt a highly skeptical position toward legal constraints, they substitute blind faith for critical analysis when it comes to assessing political forces. There are many reasons to doubt the effectiveness of political limits on executive abuses—most of which Posner and Vermeule do not even mention. First, and most fundamentally, while the democratic process may be effective in protecting the majority’s rights and interests, it is not well suited to protect the rights of minorities even in ordinary times. In periods of crisis, moreover, the executive nearly always selectively sacrifices the rights of foreign nationals, often defending its actions by claiming that “they” don’t deserve the same rights that “we” do.⁴

Democracy did nothing to protect foreign nationals rounded up in the Palmer Raids of 1919–1920, Japanese nationals or Japanese-Americans interned in World War II, or Arabs and Muslims detained in the months following September 11. To say that the rule of law is superfluous because we have elections is to relegate foreign nationals, and minorities generally, to largely unchecked abuse.

Second, the ability of the political process to police the executive is hampered by secrecy. Much of what the executive does, especially in times of crisis, is secret, and even when aspects of executive action are public, the justifications often rest on grounds that are asserted to be secret. Courts and Congress have at least some ability to pierce that veil and to insist on accountability. The public does not.

Third, the political process is a blunt-edged sword. Presidential elections occur only once every four years, and necessarily encompass a broad range of issues. Elections are therefore unlikely to be effective at addressing specific abuses of power. Even on a single issue, voters’ general concerns about unilateral executive warmaking might conflict with their specific support of President Obama’s intervention to defend the Libyan opposition to Qaddafi. There is no guarantee that they will make clear distinctions in their minds about such matters, much less in their voting patterns.

Fourth, the political process is notoriously focused on the short term, while issues of executive power are generally long-term in nature. It was precisely because ordinary politics tends to be short-sighted that we adopted a constitutional democracy. The US Constitution identifies those values that society understands as important to preserve for the long term, but knows it will be tempted to sacrifice in the short term—such as the rights of the criminally accused, minorities, and dissenters. If ordinary politics were sufficient, we would not need a constitution in the first place.

Fifth, democracy in the United States is deeply corrupted by the concentration of wealth.⁵ As Louis Brandeis wrote, “We may have democracy, or we may have wealth concentrated in the hands of a few, but we cannot have both.” Posner and Vermeule celebrate economic well-being as a bulwark against dictatorship, noting that a well-to-do and educated citizenry is often correlated with democracy. But a political process that demands large-scale fund-raising and expenditures by its elected officials, and places few meaningful limits on money’s influence on our representatives, can hardly be relied upon to effectively check the abuse of power. Such a democracy might be quite sensitive to the rights of the privileged, but since when have the privileged been the target of executive abuse? If, as is more likely, the victims of executive overreaching are likely to be the less advantaged, the democratic process is an inadequate safeguard.

In short, Posner and Vermeule treat politics much like some classical economists treat the market—as a self-regulating mechanism that magically arrives at the right answers. But just as an unregulated market is vulnerable to all sorts of abuse, so is an executive constrained only by the “invisible hand” of politics. Posner and Vermeule reserve their strongest criticism for what they call liberalism’s “tyrannophobia.” They argue that concerns about the executive becoming a dictator are overblown, irrational, and counterproductive, because they lead the electorate to deny the executive the discretion it needs to be effective.

But this is a straw man. The liberal concern is not limited to dictatorship, but extends much more broadly to abuse of official power, the targeting of minorities and other vulnerable groups, and the violation of human rights. While the United States is far from the brink of dictatorship, it is not irrational to be concerned about abuses short of tyranny that are nonetheless grave. United States presidents have locked up over one hundred thousand people because of their race (FDR); dropped two nuclear bombs on Japanese cities, instantly killing between 80,000 and 140,000 innocent civilians (Truman); prosecuted activists merely for speaking out against a war (Wilson); carried out a witch hunt affecting millions based on overheated concerns about loyalty (Truman); illegally financed guerrilla warfare against another sovereign nation in the face of congressional prohibitions (Reagan); and authorized torture and cruel treatment as modes of interrogation (Bush). Such actions cannot be disregarded merely because the presidents were not dictators.

4.

Despite its limitations, Posner and Vermeule’s book underscores a critically important point about modern constitutional democracy. The executive, if not “unbound” by law, does have an increasingly powerful hand. The separation of powers as originally envisioned is unrecognizable today. Moreover, while political checks are not sufficient to restrain presidential abuse, they are certainly necessary, and under certain conditions can be effective. As I have recently argued, it was civil society, more than the courts or Congress, that compelled President Bush to curb many of his assaults on fundamental principles of law and human rights following the terrorist attacks of September 11.⁶

But what was essential to the political pressure that forced President Bush’s hand was its substantive content—its demand that the Bush administration abide by the rule of law. Posner and Vermeule’s mistake is to assume that the “rule of politics” can replace the “rule of law.” Politics standing alone may facilitate abuse as much as check it. Consider the lynch mobs in the US, or the Nazi Party in Germany. What we need if we are to check abuses of executive power is not just any politics, but a politics that champions the rule of law. And as the record at Guantánamo illustrates, that type of politics will often coalesce around a distinctly legal challenge, objecting to departures from distinctly legal norms.

Congress’s own actions made it clear that had Guantánamo been left purely to politics, few if any of the legal protections accorded prisoners would have been allowed. The litigation on behalf of prisoners generated political pressure for a restoration of the values of legality, and that pressure in turn played a critical part in the outcome of litigation. At its best, then, there is a symbiotic relationship between politics and law, in which civil society’s appeal to law informs politics, and that politics reinforces the law’s appeal.

Posner and Vermeule understand the importance of politics as a checking force in the modern world, but fail to see the critical qualification that the politics must be organized around a commitment to fundamental principles of liberty, equality, due process, and the separation of powers—in short, the rule of law. Properly understood, the rule of politics is a critical supplement to, but not a sufficient substitute for, the rule of law. We cannot survive as a constitutional democracy true to our principles without both.