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...
As we have discussed, Part I of Posner and Vermeule’s book offered broad theoretical justifications for the historical deference that courts have afforded the executive in times of emergency, and rebutted systemic arguments of civil libertarians. In Part II of their book, Posner and Vermeule apply their tradeoff thesis to specific contexts. They emphasize that they do not...
The post 9/11 debate on presidential power has, inevitably, been overshadowed by the actual performance of the current president. I say “inevitably” but the confusion between the president and the presidency has greatly limited the value of the academic discussion, which has been unfortunate. Consider, as an abstract proposition, the claim, which could be made at any time in American...
In a comment to an earlier post by Eric, Marty Lederman has very helpfully raised the issue of how history is relevant to our discussions. I think it is relevant in three different ways: as originalist evidence, as evidence of what is desirable institutional behavior, and as evidence of what is politically possible. After some brief thoughts on...
[Bobby Chesney is an Associate Professor at Wake Forest University School of Law, and the Chair of the AALS Section on National Security Law. He is the author of the forthcoming article Disaggregating Deference: The Judicial Power and Executive Branch Treaty Interpretations (Iowa Law Review 2007)] As Adrian noted yesterday in his post “First-Order and Second-Order Judgments,” he and Eric...
As an interesting side note to the debate on counterrorism techniques, the American Psychological Association (APA) rejected a proposal on Sunday that would have prohibited psychologists from assisting interrogations at Guantanamo Bay and other military detention centers:Instead, the group approved a resolution that reaffirmed the association's opposition to torture and restricted members from taking part in interrogations that involved...
Let me say a few general words about one of Lou’s points, as endorsed and restated by Marty in his comment: “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...
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...
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?...
A crucial issue in this conversation is that of presidential motivation. Explicit or implicit claims about presidential motivations underpin many worries about increased deference to the executive in emergencies. Yes, the executive’s capacities may be impressive, but its motivations are suspect (the suggestion often runs). Thus Kevin Jon Heller suggests, en passant, that the executive’s motivation is...
[Louis Fisher is with the Law Library of the Library of Congress. He is the author of numerous books, including Presidential War Power (2d ed. 2004).] In their book, "Terror in the Balance" (2007), Posner and Vermeule make a straightforward defense of placing emergency power in the President and advise federal courts and Congress not to interfere. I think their...
Well, at least they're honest. Posner and Vermeule admit that the massive expansion of executive power that has taken place under the Bush administration is no anomaly, no temporary response to the horrors of 9/11. On the contrary, they insist that by demonstrating that "the public is more vulnerable to a devastating terrorist attack today than it has...
