Executive Motivations, Credibility and Distrust

by Adrian Vermeule

A crucial issue in this conversation is that of presidential motivation. Explicit or implicit claims about presidential motivations underpin many worries about increased deference to the executive in emergencies. Yes, the executive’s capacities may be impressive, but its motivations are suspect (the suggestion often runs). Thus Kevin Jon Heller suggests, en passant, that the executive’s motivation is to maximize its power. What to make of this suggestion, and of the general problem of distrust of the executive?

Of course, the “executive” is to some extent a they, not an it, although it is plausibly a more centralized and hierarchical institution than the American Congress, which displays fairly weak party discipline. To clear away this issue, let us focus on the President, ignoring that in practice the President is constrained by the need to coordinate many different executive officers, offices and institutions. What motivates Presidents? No single thing. Different presidents have different motivations, and whatever their motivations, they are constrained in various ways by political circumstances. In Chapter 1 of the book (pp. 53-57), we recount the cross-cutting motives that Presidents and other executive actors hold, including the desire for power, the converse desire to duck responsibility, the desire to advance preferred ideologies (which may or may not include executive aggrandizement), and even the desire for leisure time. Following an important paper by my colleague Daryl Levinson (“Empire-Building Government in Constitutional Law”, Harvard Law Review 2005), we doubt there is any sense in which power-maximization is the dominant presidential motive, let alone the sole one. Moreover, Presidents cannot always act on their motives; they are bound down by political and reputational constraints, such as the need to please both a political party and the median general-election voter (for first-term presidents) or to please the historians (for second-term presidents). Some presidents are power-maximizers, some are not, and power-maximizers may be constrained to act as if they were not, depending upon political circumstances.

What is true, as Heller’s post exemplifies, is that distrust of presidential motivations is a real obstacle to interbranch and bipartisan cooperation in the war on terror. In other wars, such as the Civil War and World War II, presidents used credibility-generating devices to enhance public trust; thus both Lincoln and Roosevelt placed members of the opposition political party in their war cabinets, and President Clinton made a moderate Republican his Secretary of Defense. The current Bush administration can very plausibly be faulted for failing to employ these and other institutional devices for generating credibility and trust (devices that Eric and I discuss at length in “The Credible Executive,” University of Chicago Law Review 2007). These devices have their costs – the price of generating credibility is that the President surrenders some control over policymaking to political competitors — but for a President like George W. Bush whose credibility is exceedingly thin, the benefits would be greater still.

All that said, however, we ought not overlook a positive point: in an uncertain security environment, legislators often have overwhelming incentives to transfer new powers even to a President with very little credibility. The Democratic Congress recently gave the administration a temporary enhancement of its surveillance authority, in part because the administration warned of an increased risk of terror attacks. The legislators’ political calculus seems to have been that even if the warnings could not be verified, and even if there was no reason to trust the administration’s claims, still the warnings might be true, and the political risks of rebuffing them were too great; what if an attack actually occurred and legislators were blamed for their inaction? Executive credibility is important, but it is not the only thing that is important. The circumstances of emergency politics will often produce legislative deference even to a noncredible executive in matters of national security.

http://opiniojuris.org/2007/08/20/executive-motivations-credibility-and-distrust/

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