Law matters, even to the executive.

Author:Mortenson, Julian Davis
 
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Power and Constraint: The Accountable Presidency After 9/11. By Jack Goldsmith. New York: W.W. Norton & Co. 2012. Pp. xvi, 252. $26.95.

The Executive Unbound: After the Madisonian Republic. By Eric A. Posner and Adrian Vermeule. New York: Oxford University Press. 2011. Pp. 210. $29.95.

INTRODUCTION

In both constitutional and international law, many legal rules cannot be implemented without what most people would describe as the voluntary compliance of their target. Is that really "law"? Or is rule compliance in such circumstances just an expression of "interests"? Forget jurisprudence for the moment. As a practical matter, what does it mean to work as a lawyer in a field where the rules are not coercively enforced against private parties by an independent judiciary whose orders are implemented by a cooperative executive? This question has particularly high stakes for national security policy, where we find judicial deference at its highest, the centralization of modern government at its most pronounced, delegations of authority to the executive at their broadest, and contempt for idealism at its most self-satisfied.

Two recent books on executive power prompt this return to such well-trodden ground. In The Executive Unbound: After the Madisonian Republic, Eric Posner (1) and Adrian Vermeule (2) claim that the constitutional rule-of-law apparatus is basically worthless. In Power and Constraint: The Accountable Presidency After 9/11, Jack Goldsmith (3) says just about the opposite. This Review argues that Goldsmith is right and supplements his account by identifying a key mechanism in the political economy he describes. The Review begins by separating the various threads of argument advanced by Posner and Vermeule to expose how implausible their conceptual claims will seem to most lawyers. It then explores how their (largely unsupported) descriptive claims are contradicted by Goldsmith's empirical account as well as by other evidence adduced here. The Review closes by suggesting that one of the most plausible causal mechanisms for the efficacy of law--the deep vein of respect for legality that characterizes our culture--is itself a primary target of Posner and Vermeule's project.

Posner and Vermeule make three kinds of arguments. First, they make a theoretical claim about the necessary conceptual vacuity of legal rules that apply to the executive. Leaning heavily on Carl Schmitt, they argue that law itself--certainly the actual laws applicable to executive action in the American system, but perhaps even law in general--is an elaborate shell game with no interpretive constraint beyond what the decider decides. The second claim is empirical: regardless of whether law contains interpretive limits conceptually, the only thing that in fact constrains the American presidency is politics, construed narrowly as competition between self-interested electoral constituencies. On this model, law is a smokescreen for brute policy clashes between political enemies, and presidential behavior changes only as a function of evolving majoritarian political preferences. The third claim is a prediction about the federal separation of powers: while modern governance cannot help but evolve into radical executive-centricity, we shouldn't worry about it because tyrannical policies are unlikely to result.

These claims are individually wrong and collectively dangerous. The first--that law does not impose genuine interpretive constraints--is simply implausible. Virtually any legal norm leaves room for interpretation, and virtually any legal rule has boundaries beyond which its application is uncertain. But that doesn't mean that law as such contains no meaningful interpretive limits. Posner and Vermeule's inapposite rejoinder that the president "can" ignore the law in secret is no different from the fact that I "can" run a stop sign or throw a rock through a stranger's window at night. The Schmittian theory of law endorsed by Posner and Vermeule is a relic of a time when totalitarianism seemed potentially inevitable and possibly even attractive. Efforts to revive it for modern purposes offer a bridge to nowhere.

Their second argument--that whatever the lawyers say, presidential action is just a function of material political interest--doesn't square with reality. On this question, an ounce of experience (or at least a vaguely plausible empirical grounding) is worth several pounds of theory. Granted, legal obligations are neither perfectly constraining nor the only influence on executive behavior. As Goldsmith's work makes clear, however, lived experience teaches us to take law seriously. In a series of painstakingly researched case studies, Goldsmith builds a richly detailed account of the way structural checks and balances continue to impose real political constraints on the president. But for present purposes, what emerges most usefully from his work is something on which Goldsmith does not focus: evidence that law as such, far from being a dependent derivative of power politics, itself regularly constrains national security policy. Indeed, legal rules limiting official behavior regularly generate compliance--whether effectuated by congressional interference, judicial order, or executive self-policing--that is at odds with the material policy priorities of presidents and their political constituents.

Posner and Vermeule appear at one point to sense this problem, hinting in an elliptical aside that law talk might have force if adopted as a policy priority by sufficiently powerful actors. That move, however, gives the game away. Because for law to matter requires only that people care about it--that we subjectively experience it as a priority worth defending or a liability worth planning around. And in the United States, respect for legality is a core component of the collective national culture: while Goldsmith does not himself make this argument, it is the necessary predicate for many of the episodes he describes. If Posner and Vermeule's point is that for modeling purposes, we can describe this kind of compliance pull as a mere policy preference, then what first seemed like a radical argument turns out to be a pretty uninteresting exercise in semantics. True enough: law is not magical fairy dust, and its enforcement requires that people in power care about it. But we have known that for a very long time.

That brings us to their third argument, a dramatic descriptive claim about the liberal political order that--were it to become a leitmotif of intellectual and political discourse--would operate to undermine the cultural bulwark of our legal heritage. It is by now trite to observe that the national balance of power has tilted toward the executive branch. But Posner and Vermeule go much further. For them, the Madisonian liberal order has passed into the realm of myth, and structural restraint on the executive into something more like farce. To the extent this picture depends on contingent choices about legal and political structures, their counsel of inevitability operates to entrench existing arrangements that already promote presidential dominance. But there is a deeper risk at work. Both the separation of powers and the efficacy of law depend on a culture of respect for the rules and for the actors who implement them. If law matters because people think it does, then a sustained effort by public intellectuals to deny its relevance may be the most radical act of all. The law is, ultimately, what we do. And debates about whether it is real both reflect and constitute the answer to that question.

  1. MADISON IN THEORY

    Posner and Vermeule pitch their work as descriptive analysis of empirical fact, explaining how politics "actually" function and the way law "actually" works. (4) Despite this sociological posture, their discussion edges repeatedly toward a conceptual claim that public law contains no genuine interpretive constraints. In their view, presidents have not only the practical power but the legal right to do whatever they want, free from constraint as a matter of both sociological fact and legal theory.

    On this account, legal restraint is untenable both practically (in terms of whether legal prohibitions have operational legs) and conceptually (in terms of whether rules are logically capable of prescribing definitive limits in the first place). Radical outcome indeterminacy is thus a congenital condition of law in the administrative state, (5) and perhaps even of legal structure more generally. Even when a separation of powers dispute is "accompanied by legal arguments," the content of such claims is endlessly manipulable: "just another move in the bargaining game" (Posner & Vermeule, p. 63). The upshot is that "the executive governs, subject to legal constraints that are shaky in normal times and weak or nonexistent in times of crisis" (Posner & Vermeule, p. 4). And, crucially, this absence of interpretive constraint in crisis "merely reveal [s] the underlying dynamics that operate de facto in all periods" (Posner & Vermeule, p. 33).

    Posner and Vermeule's loose assertions about the infinite conceptual tractability of legal constraint are no more convincing than those of Carl Schmitt, the intellectual precursor on whom they rest this argument almost entirely. These days, their interest in Schmitt is not unusual: for a man with so many skeletons in his closet, (6) he has enjoyed a remarkable resurgence of scholarly attention. (7) Because of Schmitt's strange return to prominence, and because Posner and Vermeule rely on his framework as the intellectual foundation of their own, (8) it is useful to expose the implausibility of his claims by being clear about precisely what they are.

    Schmitt's Political Theology (9)--the work that most influences Posner and Vermeule's understanding of legality, legitimacy, and the rule of law (10)--is easy to misread, not least because of what can often feel like its romantic attachment to...

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