Is the Empirical Irrelevant?

by Kevin Jon Heller

Vermeule and I agree one one point: “A crucial issue in this conversation is that of presidential motivation.” There, however, I think the agreement ends.

Vermeule’s third sentence is an adequate starting point: “Yes, the executive’s capacities may be impressive, but its motivations are suspect (the suggestion often runs).” True as the second half of the argument is, my problem is with the argument’s premise: that the executive’s capacities are impressive. I see no reason to assume, a priori, that the executive has the capacity to make intelligent decisions about the necessity for particular counterterrorism techniques — or, perhaps more precisely, that its capacity for doing so is more impressive than the legislature’s. Capacity is very different than authority: even if we accept (and I do not) the belief of scholars like John Yoo and our own Julian Ku that the Constitution entrusts nearly-exclusive authority to fight terrorism to the executive, that in no way requires us to assume that the executive has the capacity to use that authority wisely.

Vermeule, however, simply takes executive capacity as a given. Particularly revealing is the analogy he uses to respond to Fisher’s excellent post:

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.

Fair enough — if the executive is normally the Havard-trained doctor and the legislature is normally Dr. Atkins. But is that really true? Where is this executive competence that Vermeule (and Posner) so venerate? The head of the executive — the President — does not have to have any expertise in foreign policy or counterterrorism to be elected. And although the President has the authority to appoint well-trained individuals to important positions within the executive (director of the CIA and FBI, the Joint Chiefs, the Secretary of Defense, etc.), there is no guarantee that he or she will use his or her authority wisely. History is littered with executive officers who proved incapable of creating healthy counterterrorism diets, no matter how fancy their degrees.

Posner and Vermeule, however, pretend that the empirical question of institutional competence does not exist. They simply assume that the executive is more competent than the legislature. But, of course, they have no other choice, because defending executive superiority would require them to examine the merits of actual executive decision-making, something — as Fisher rightly points out — they refuse to do:

As they say, “as lawyers, we do not have any experience regarding optimal security policy” (p. 6). “We have no opinion about the merits of particular security measures adopted after 9/11… We hold no brief to defend the Bush administration’s choices, in general or in any particular case” (p. 9). They hesitate to criticize the internment of Japanese-Americans in WWII “on the merits, because we lack the necessary expertise to judge, even in hindsight, whether the action was justified, all things considered” (p. 113).

This is, I would respectfully suggest, deference at its most perverse. Again, the crux of Posner and Vermeule’s argument is competence, not authority. Absent some compelling explanation of why the executive is structurally more competent than the legislature — which we have not been given — the only way to determine the competence of the executive is to examine the utility of the policies it actually adopts. Yet Posner and Vermeule pretend that such an examination is irrelevant — or, if it is not strictly speaking irrelevant, that the legislature has no business engaging in it.

It is not surprising, of course, that Posner and Vermeule rule the empirical off-limits. I have, to this point, avoided the elephant in the room: that “Terror in the Balance” is appearing in year six of the Bush administration, seemingly the least competent executive in decades, if not centuries. (A point on which many conservatives agree with progressives like me.) I have intentionally decontextualized my argument, because my distrust of executive competence and executive motivation is by no means caused by, or limited to, the Bush administration. I would make the same argument — with fewer data points, to be sure — regarding the Clinton administration. Nevertheless, it seems even more perverse to pretend that empirical examination of the outputs of executive decision-making are irrelevant when the catastrophic effects of the Bush administration’s outputs are splashed across our newspapers and computer screens every day.

A lengthy defense of that empirical claim is obviously beyond the scope of this post. If Posner and Vermeule want to debate the relative merits of the “spying, detaining, coercive interrogating, [and] procedurally limited trying of suspects” that they believe are now permanent fixtures of our legal and political landscape, I imagine that I am not alone in being willing to do so. For now, suffice it to say that we can plausibly reject their defense of deference to the executive even if we agree — as I do — that “[s]ome presidents are power-maximizers, some are not, and power-maximizers may be constrained to act as if they were not, depending upon political circumstances.” True enough, but largely irrelevant. What matters is not whether some presidents are not power-maximizers, but whether the President currently in office is a power-maximizer. In other words, we need to determine in practice, not simply in theory, whether two of the necessary conditions of Posner and Vermeule’s “tradeoff thesis” are true: namely, that the executive “is motivated to maximize the welfare of the whole polity” and “is as willing to increase liberty after an emergency has passed as it is willing to increase security when an emergency arises.”

Put charitably, I do not think the Bush administration passes the test. (And I’m not sure how many previous administrations, Republican or Democratic, would either.) Hence my “distrust of presidential motivations,” which Vermeule accurately identifies. Perhaps I am wrong to reject the idea that “interbranch and bipartisan cooperation in the war on terror” requires the legislature to defer uncritically to the executive no matter what the “outputs” of that deference may be, despite that definition’s Orwellian overtones. Perhaps I simply should trust the “impressive” capacities that somehow inhere in the executive branch to reign in the more unsavory motivations that actual executives often reveal. But I just can’t do it. Given the choice between relying on the legislature to check a president’s authoritarian ambitions or trusting the “reputational constraints” imposed on a president’s need to “please the historians,” I’ll choose the legislature every time.

http://opiniojuris.org/2007/08/20/is-the-empirical-irrelevant/

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