The Scope of Deference
I agree that the concerns that Bobby Chesney identifies are real and important. There are no answers at the level of theory; the scope and level of deference must be worked out at the level of practical politics. In practice, as we have seen, the president (and presidents generally) press for maximal powers where they think they need them, subject to political constraints. President Bush has not argued that his commander-in-chief power gives him the right to dictate educational policy because such an argument is a loser politically as well as legally. The courts defer with respect to some actions and not others. Presidents often acquiesce when courts refuse to defer, but sometimes they put up varying levels of resistance—appealing up the chain, or jurisdiction-shopping until they get a better result, or exploiting loopholes, or buying for time, or in rare instances (FDR, Lincoln) disobeying or threatening to disobey judicial orders. Public and elite responses to the performance of the relevant actors gradually determines the practical limits on presidential, judicial, and congressional action. I’m afraid we don’t have anything illuminating to say about how boundaries should be determined in practice, or how context-specific deference ought to be.
But we do want to avoid the legalistic impulse to try to determine in advance what the rules should be. (Again, this is the impulse behind Ackerman’s Emergency Constitution.) There are obvious benefits from having rules stated in advance, but the rules/standards literature makes clear that there are costs as well. Emergencies are not like the revenue-generating behaviors that are regulated by the tax code. Because it is hard to anticipate the next emergency, rules determined today will inevitably be poorly suited to the emergency that occurs tomorrow. On balance, the unpredictability of emergencies argue in favor of general standards of conduct rather than rules.
On a somewhat related issue, some of the comments might give readers a misleading impression that we take a dichotomous view: that the choice is between presidential dictatorship or not, and we opt for the former. Bobby Chesney correctly notes that the real debate is about the proper location on a continuum. To pick silly numbers for clarity, suppose 0 is pure executive government, 100 is pure legislative government, and 50 is some mix of deference and congressional/judicial oversight. We do not argue for 0, nor does anyone argue for 100. To pick more silly numbers, suppose that on most issues in normal (non-emergency) times the system is at 50. During emergencies, it typically goes down to (say) 20. Some civil libertarians seem to argue for, say, 40 or even 60 during emergencies. We want to say that 20 seems right—or, more precisely, there is no reason for thinking that 20 is wrong. Civil libertarians make a series of arguments that 20 is too low—the panic argument, etc., as we noted earlier. In trying to refute these arguments, we are not committing ourselves to 0; we are committing ourselves to 20 for the duration of the emergency.
A complicating factor, which I referred to in an earlier post, is the existence of other trends—technological, cultural, geopolitical—that affect the optimal location on the continuum. So it may be that as weapons become cheaper, smaller, and more destructive, we will have to reconcile ourselves to a long-term decline from 50 to, say, 40. On the other hand, if foreign political extremism fades (as it has in the past, and will surely do again), the optimal point could rise from 50 to some higher number.