[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 first two sentences in the Introduction are largely on point: “When national emergencies strike, the executive acts, Congress acquiesces, and courts defer. When emergencies decay, judges become bolder, and soul searching begins.”
I am less confident about this assertion: “We maintain that the civil libertarian view, in any version, rests on implausible premises and is too weak to overcome the presumptive validity of executive action during emergencies” (p. 5). Presumptive validity? Why is that their starting point? Truman thought the Chinese would not intervene if he went north into Korea. Wrong. LBJ escalated the war in Vietnam on the basis of a second attack in the Tonkin Gulf that did not happen. Bush II justified war against Iraq on the basis of many assertions (Iraq-al Qaeda link, uranium ore, aluminum tubes, mobile labs, drones, chemical and biological weapons, etc.) that were false. I see no grounds for presumptive validity or any automatic trust in superior expertise that resides in the executive branch.
As a second point, I find it curious that the two authors regularly claim a lack of competence or expertise on their part to second-guess decisions by the executive branch in time of emergency. 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). Without explaining why, they later say that the Court’s decision was “notorious” (p. 121). Why can they make a decision on the merits in one case but not the other?
If they are that agnostic, on what grounds do they take presidential power as of presumptive validity, compelling other branches to defer? Nowhere do they explain, and especially is that so in terms of the values and structures behind separation of powers, checks and balances, and the fear of concentrated power that are so basic to the U.S. Constitution.
They fault the Supreme Court in Rasul for challenging the position of the executive branch that Guantanamo provides immunity against any lawsuit brought by detainees. They find very “dubious” the Court’s failure to follow its 1950 holding in Eisentrager (p. 258). They’re not neutral here. Why not find “dubious” the Justice Department’s argument? The detainees in Eisentrager had been charged and convicted. The detainees in Guantanamo had not been charged and convicted. Why show intellectual independence and skepticism against the judiciary but not against the executive?