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...
[Eric Posner is Kirkland and Ellis Professor of Law at the University of Chicago School of Law. Adrian Vermeule is professor of law at Harvard Law School] Our thanks to Opinio Juris for organizing this symposium. The market has become crowded with post-9/11 books and articles discussing the role of courts in the war on terror. Most 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...
Opinio Juris is very pleased to host for the next few days an online symposium on Eric Posner and Adrian Vermeule’s new book, Terror in the Balance recently published by Oxford University Press. The format for this symposium will be familiar to those who followed the symposium we held three weeks ago on Michael Ramsey’s book, The Constitution’s Text in Foreign...
Here's a footnote from the Economist to the recent posts on the scramble for the Arctic:...
Next week, the leaders of Canada, Mexico, and the U.S. will meet in Montreal as part of the Security and Prosperity Partnership (SPP), a trilateral framework for cooperation between the three states. As a matter of international law classifications, the SPP is not a formal international organization nor is there a formal international agreement or charter that undergirds it....
Here's a story you don't see everyday — a Colombian drug kingpin who wants to be extradited to the U.S.:The lawyer of a reputed leader of Colombia's biggest drug cartel said Tuesday he will travel to Washington to discuss ways to speed up his client's extradition to the United States. Juan Carlos Ramirez Abadia, 44, who faces three U.S. federal indictments...
