First-Order and Second-Order Judgments

by Adrian Vermeule

There is an issue that comes up repeatedly in discussions of national security law. Suppose we define “law” broadly to include the optimal allocation of institutional authority to establish and execute national security policy. On what grounds can academic commentators who lack expertise in national security policy argue for any particular allocation of such authority, in particular circumstances? If one is agnostic about the merits of first-order policies that one cannot judge, for want of expertise, how can one make a second-order argument that some institution is relatively more likely to make “good” national security policy? To know what counts as “good”, wouldn’t one have to judge the merits of first-order policies? In our book, Eric and I are agnostic about the merits of many national-security policies the executive has pursued during emergencies, in particular the post-9/11 emergency. But we urge the second-order claim that the executive does and should receive even more deference during emergencies than during normal times. Is this inconsistent? (Lou Fisher’s post can be read to suggest that it is).

On closer inspection, however, this looks like a pseudo-puzzle. In fact it is routine to make second-order judgments when, and indeed because, one cannot make first-order judgments. I may have no idea whether the diet prescribed by my Harvard-trained doctor is superior to that suggested by the diet guru Dr. Atkins; but I can make a coherent judgment to trust the former’s credentials and expertise over the latter’s. Where one cannot judge outputs or results, one can still judge inputs, such as training, resources and expertise. Moreover, it is often easier to make relative judgments than absolute ones. (How tall is the Sears Tower? I have no idea. But I am confident it is taller than the Washington Monument, whose height I do not know either). And the thesis we defend in our book is entirely relative: as one moves from normal times to emergencies, the executive’s comparative advantages increase and other institutions should shift more authority to the President. “The deference thesis does not hold that courts and legislators have no role at all. The view is that courts and legislators should be more deferential than they are during normal times; how much more deferential is always a hard question and depends on the scale and type of the emergency.” (Terror in the Balance, p. 6). Because it is so hard to know how much deference is correct, we plump for the historical level of deference, which has been very great during emergencies; those who would argue that the historical level has been too great have a kind of burden of proof.

Our particular second-order judgment about the relative benefits of shifting power to the executive during emergencies may be right, or wrong, on the merits. But there is nothing inconsistent in combining (1) agnosticism about first-order judgments of national security policy with (2) clear second-order judgments about relative institutional capacities. Indeed, to the extent (1) is correct, (2) is all the more pressing.

4 Responses

  1. Hey, Adrian: Thanks for offering to participate in this blog experiment. This is exactly the right question, at least about the “second-order” judgment: “On what grounds can academic commentators who lack expertise in national security policy argue for any particular allocation of such authority, in particular circumstances?”

    After all, most of us are trained lawyers, not political scientists who have studied optimal allocations of decision making authority, let alone security experts. So how should we evaluate what the optimal allocation of responsibility is?

    You answer, interestingly enough, is “we plump for the historical level of deference, which has been very great during emergencies.” In other words, perhaps we can at the very least assume that what has been historically done reveals some collective wisdom over time. Fair enough — as you know, my current project makes a very similar assumption. (I think that none of us has adequately considered comparative studies in addition to history: E.g., what happens in other countries when the executive is given a blank check? Which allocations of responsibility have, more often than not, led to better outcomes in similar democratic systems? But I’ll put that to the side for now.)

    But what does history show us about (i) how the three branches have ordinarily allocated power amongst themselves in emergencies; and (ii) what happens when the executive is given a free hand?

    I think Lou’s principal points were these (they’re what I’d focus on, anyway):

    First, the Framers had seen up close what can happen when too much “emergency” power is concentrated in the executive (short answer: it wasn’t pretty), and therefore established substantial checks (mostly structural, but, esp. in the Bill of Rights and laws of war, also substantive) to prevent that from happening here.

    Second, in fact, throughout history, both Congress and the courts have regularly imposed limits on the Executive (statutory laws; interpretations of the Constitution; limits deriving from the laws of war) to be applied in wartime and other emergencies. Yes, they defer quite often — except when they don’t. There are times, including in your post here, where your thesis appears to be something like this: Because the courts and Congress usually defer to the Executive, they should always (or presumptively) do so. But why does that follow? If history is to be an instructive guide, why isn’t the lesson basically “trust, but verify,” or “loosen the leash considerably, at least in the short-term heat of emergency, but don’t let go altogether; and constantly subject the Executive’s judgments to empirical evaluation and critical review”?

    Third, and perhaps most importantly, we see that very frequently, when the Executive is unchecked (either because of congressional and judicial abdication/deference, or because the President ignores external limits and institutional checks (see generally Cheney)), the results are disastrous — as they have overwhelmingly been in this Administration.

    That is to say: I don’t know for sure, but I’d be willing to wager that if history were viewed dispassionately and in the long run, the lesson would be considerably more complex than “presumptively trust the Executive.” I imagine — although of course I can’t be certain — that the better lesson would be “The Executive makes the best, most efficacious decisions not when he is given a complete free hand, but instead when he knows that such decisions will be subject to significant checks and balances of (i) professionals within the Executive branch; (ii) Congress and its staff (which one hopes would be informed by those executive professionals (see, e.g., the JAGs)); (iii) the courts, sitting to ensure that the limits imposed by statutes, the laws or war, and the bill of rights are honored; and (iv) the press.”

    Is there historical or other empirical reason to think that that is not the case?

  2. I am dismayed that the authors just assume the historical approach is the proper level of deference. I see no reason to consider that deference by Congress and the Courts during times of hysteria to the actions of the Executive are some reasonable historical baseline.

    Much of the baseline would be in periods pre-WWII when much of human rights law and international humanitarian law was much less elaborated than it is now. Much of the precedents would be in period where as a defacto or dejure matter large numbers of Americans were disenfranchised from voting to shape the Congress, the Executive and the Courts.

    I am sorry but I decline to buy this line of logic that is basically another effort (how many have we seen) to have us acquiesce in illegal acts done by the Executive. You can turn these discussions anyway that you want, but – in the end – that is all that this type of scholarship is trying to do. I believe it is perfectly reasonable to resist such Executive overreaching, to resist the silence, to insist on protection of civil rights and human rights, and to prosecute those in the Executive who do overreach.

    Congress is free as are the courts to take decisions that confirm the rule of law notwithstanding the Executive. That Congress or the Courts do not do that only suggests that the constitutional structure the Framers put in place does not work as well as the Framers hoped. They were, after all, a bit concerned with tyranny. Washington’s hesitancy about having an inauguration and the rest of it show a remarkable wisdom in the man but not a wisdom that is inherent in the role.

    I find all these books a bit troubling as apologia. As to first-order and second-order, as a human being I can make a determination about a choice that is a first-order decision of the Executive branch. I do not want my phones tapped. I do not want dissent squelched. I do not want Jose Padilla held in prison for 3 and 1/2 years and tortured. I do not analyze these types of decisions as “tradeoffs” simply because there are some things that are not “tradeoffable” – they are just rights that individuals have against the state. The hard thing is to find the right 2 by 4 to get the state to stop its rush to Leviathan.



  3. I think this paints a completely false picture.

    The “first order decision making” is properly the legislative process by which WE, the People, enact OUR laws, and the resulting legal corpus embodies – as a matter of both political theory and epiustemolgy — the full comptence of the entire society and culture extending back through the ages to 1776 and beyond.

    The fact that our laws are often abused is not an argument for “deference” any more than the fact that people are murdered every day is a reason to leglaize or tolerate murder. And what is your evidece that this administration or any other ever broke or bent the law was doing so as a function of their superior competence in anything?

    The historical record sugests exacly the opposite conclusion: that decisions taken in secrecy without regard for the law tend to be verye bad decisions which reflect the incompetence and / or corrupt motives of the decision makers. That is certainly the case with this disaterous administration, and it’s very difficult to beleive that the people who wrote our Constituion were confused on that point in regard to the administration of George III.

    The argument that 911 changed everything is preposterous: the inquistion was a war against Satan — what human threat is worse than eternal damnation or the wrath of the gods?

    That’s an old game, and forget Weimar: I want to know how you square all of this with Charles I.

  4. I am dismayed that the authors just assume the historical approach is the proper level of deference. I see no reason to consider that deference by Congress and the Courts during times of hysteria to the actions of the Executive are some reasonable historical baseline.

    Mr. Davis raises an interesting point. Frankly, I’ve been rather happy to see there’s been no rounding up or systemic persecution of those of Arab dissent during this conflict.

    American conduct, especially regarding civil liberties and minorities during war time, is historically a very low goal to aspire to.

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