Smoking Out the Alternatives to Dominant Executive Power

As many of our readers might have guessed, I generally agree with the approach and conclusions of the Posner/Vermeule book so I have little to add in criticism. Let me jump in therefore to explain why I think their approach is not just correct, but, perhaps more importantly, why their analysis is helpful for advancing the debate over balancing national security and individual rights.

Typically, a conversation about security and individual liberty, at least in the United States, gets bogged down in two kinds of predictable debates.

First, lawyers in the conversation start making all sorts of very strong claims about how the Constitution provides a clear and unambiguous answer to the problem. The problem, of course, is that these lawyers don’t agree on what those unambiguous answers are.

Second, everyone in the conversation starts disagreeing about whether or not there really is security threat, and how serious that security threat is.

The Posner/Vermeule approach can elide both of these often unresolvable debates by shifting the question. They assume that the Constitution fails to provide a clear answer and avoid addressing whether there really is a serious security threat. Instead, they ask: which institutional arrangement is most likely to be able to determine the seriousness of a security threat and the proper response? They conclude that a system of an institutionally dominant executive branch with deference from the courts and Congress is the best system.

By shifting the question, the authors force critics of increased executive power to offer plausible alternatives to a system of dominant executive power rather than simply coming up with new ways to denounce John Yoo. In other words, they force their critics to offer an alternative institutional arrangement and explain why that arrangement is likely to achieve superior results.

Few critics bother to do so, but if they did, I think most critics of the dominant executive would support a dominant judiciary. This is a respectable position, but it is one that rarely receives enough elaboration. As I understand this approach, the executive cannot act in most areas of national security without authorization from the legislature. Further, any legislative-executive joint action must receive clearance from the courts who will seek to force the legislature to spell out every single authorization (a la Hamdan) and who may invalidate joint legislative-executive actions that violate relevant laws, including international law.

It is plausible that this arrangement will result in much greater protection of individual rights. But it is highly implausible that it will be more effective in preventing a future 9/11 style attack, Gov. Kean’s murky claims notwithstanding. Even worse, its reliance on the courts means that it relies on the least flexible, least adaptable institution in the context of emergency attacks. Courts are the least likely institution to expand or change their sources of information or the speed of their decisionmaking processes. They are designed to be slow and inflexible. So even after a 9/11 attack, a dominant judiciary is going to have a hard time adjusting, even if everyone wants it to.

The empirical evidence — i.e. historical practice — suggests that U.S. decisionmakers have almost always preferred a dominant executive over a dominant judiciary in responding to emergencies. This suggests that a dominant executive is not simply a result of Dick Cheney’s evil influence, but the result of rational decisionmaking by policy makers who have thought about the best way to arrange institutional power to respond to emergencies.

So even if you don’t agree with Posner and Vermeule, I do hope that their work will inspire critics to shift their efforts from complaining about the current administration and executive power and toward a thoughtful defense of the alternative.