Online Symposium: An Introduction to Part I of
The first part of Posner and Vermeule’s book offers a forceful theoretical defense of executive authority during times of emergency. The book offers a thoughtful and well-reasoned perspective on the cost-benefit analysis at play when government seeks the optimal balance between the competing goods of security and liberty. Posner and Vermeule argue that there is a Pareto security-liberty frontier at which no win-win improvements are possible. That is, at this frontier any increase in security will require a decrease in liberty, and vice-versa. From my perspective, the existence of this security-liberty frontier appears unassailable.
Given this frontier, Posner and Vermeule then offer their central argument of institutional competence. They argue that there are few or no domains in which it is true both that government choices about emergency policies are not accurate (on average) and that judicial review can make things better. They further argue that civil libertarians who subscribe to vigorous judicial review in times of emergency fail to identify a large and important set of cases in which government blunders or acts opportunistically during emergencies and in which judges can improve matters. I would suspect that it is this argument of institutional competence that is more likely to be challenged in the online discussions that follow.
But rather than attempting to summarize the book further, I have chosen a few key excerpts from pages 12-14 of the book that give you a flavor of their arguments:
“Our view is that judges deciding constitutional claims during times of emergency should defer to government action so long as there is any rational basis for the government’s position, which in effect means that the judges should almost always defer, as in fact they have when emergencies are in full flower. In times of emergency, judges should get out of the government’s way, because sometimes government will choose good emergencies policies, and even when it does not, judicial intervention may only make things worse, not better… [G]overnment functions no worse during emergencies than during normal times, and even when government makes mistakes during emergencies, judicial intervention cannot improve matters.
There is a straightforward tradeoff between liberty and security… At the security-liberty frontier, any increase in security requires a decrease in liberty; a rational and well-functioning government will already be positioned on this frontier when the emergency strikes and will adjust its policies as the shape of the frontier changes over time, as emergencies come and go. If increases in security are worth more than corresponding losses in liberty, government will increase security; but if reductions in security will produce greater gains from increased liberty, government will relax its security measures. A ‘rational’ and ‘well-functioning’ government here is one that makes no systematic errors of cognition, that is motivated to maximize the welfare of the whole polity, and that is as willing to increase liberty after an emergency has passed as it is willing to increase security when an emergency arises. Given the tradeoff thesis, judicial review in times of emergency cannot improve matters, because there is no reason to think that courts possessing limited information and limited expertise will choose better security policies than does the government.
The succeeding chapters in part I explain, and rebut, the leading criticisms of the tradeoff thesis…. On [the panic] theory, government officials panic or implement the panicked views of the populace, and the panic causes officials systematically to overestimate the benefits of increased security and to underestimate the costs of reduced liberty…. [But] fear can improve decisionmaking as well as hamper it, because fear supplies motivation that can overcome preexisting inertia…. In any event, there is no class of decisionmakers who can be insulated from panic at acceptable cost, not even judges.
In chapter 3, we consider the “democratic failure theory.”… On this picture, citizen-voters are not only rational, but self-interested, and this causes their governmental agents to supply security policies that benefit the majority at the expense of political, ideological, or ethnic minorities…. [This] theory fails on several counts…. It is equally consistent with the democratic failure theory that majorities will cause government to supply excessive liberty, rather than excessive security, and the costs of the searching judicial review recommended by the theory increase during emergencies, to unacceptable levels….
[Next] we consider the “ratchet theory” of emergencies, which suggests that there is a systematic bias in governmental moves along the security frontier: government will increase security and decrease liberty during emergencies, but will never readjust by increasing liberty after the emergency passes, or at least will do so less than it should…. Ratchet theories typically lack any mechanism that makes policies spill over into new areas or that makes them stick after the emergency has passed; there is no evidence for ratchets in the history of American security policy….
What these arguments have in common … is that they seem to be more sophisticated grounds for constraining emergency power than does a brute appeal to rights…. Unfortunately, for all of their intrinsic interest, these mechanisms and effects are too precious, too fragile, or too speculative to provide convincing grounds for impeaching governmental decisionmaking during emergencies. Nor do these mechanisms support a robust role for judicial review during emergencies, because judges are often subject to the same distortions of cognition or motivation, and because judges lack the information necessary to sort good governmental choices from bad ones.”