The separation of powers may be the foundation of our constitutional system, but does it still make sense today? James Madison famously argued that checks and balances are an essential bulwark for liberty; by setting branch against branch, the structure of our government minimizes encroachments on fundamental rights and encourages dialogue and deliberation. But as anyone who has tried to get anything done in Washington quickly learns, the separation of powers is also remarkably inefficient.
American scholars, politicians, and citizens have debated these issues for the entire course of the nation’s history. But now Eric Posner and Adrian Vermeule, law professors at the University of Chicago and Harvard, respectively, tell us that such questions are beside the point, because the separation of powers is just an illusion, a hoary relic of the past ill-equipped for today’s challenges. Executive power in the modern era, they maintain, cannot possibly be constrained by the legislative and judicial branches, or even by law itself, so we might as well get over it. And there is nothing to fear from an executive unbound by law, because the real checks on the president are political, not legal, and democracy, they believe, is in good condition in the United States. Liberals’ fears of executive tyranny are not only irrational but positively harmful. The authors’ message echoes the Department of Homeland Security’s early post–September 11 security alerts: the president is legally unfettered, but go about your daily business as usual.
Posner and Vermeule, two of the nation’s leading conservative legal academics, are hardly the first to notice that presidents have become much more powerful in the modern era.1 Like others before them, they attribute this development largely to the growth of the administrative state, with its huge bureaucracies, and to the near-constant state of emergency in which modern American government now seems to work. In practice, the vast and complex matters subject to federal regulation require Congress to cede control to the executive, through broad delegation of authority to administrative agencies. Those agencies, a part of the executive branch, then exercise the powers of all three branches: promulgating rules, investigating violations, and adjudicating disputes. Members of Congress lack the experience and time to micromanage such diverse subjects as energy, finance, commerce, transportation, telecommunications, the environment, and immigration. And the executive vastly outnumbers the other branches; about 98 percent of the federal government’s nearly two million employees work in the executive branch.
Globalization exacerbates these trends, since the president is the nation’s primary voice abroad, and regulation increasingly requires coordination across borders. In emergencies, the executive’s characteristics of speed, flexibility, unified command, and secrecy are especially valued, so Congress tends to delegate broadly, and courts in turn typically defer to executive action.2 Under these conditions, the authors maintain, it’s simply not feasible for the other two branches to keep effective tabs on what the executive is up to.
But where others view these developments as profound challenges to our constitutional democracy, Posner and Vermeule insist that they are inevitable and of little concern. They are inevitable, in their view, because there is only so much that law can realistically do to constrain executive action anyway, given the vast range of issues with which the executive branch deals and the need for flexibility and discretion in doing so. And they are of little concern because political constraints on the executive render the rule of law unnecessary. The real problem, according to Posner and Vermeule, is that liberal society’s irrational fear of tyranny makes it unwilling to grant to the executive the power it needs to operate effectively.
While there are important elements of truth in the authors’ observations about growing executive power, they overstate their case, and the implications they draw seem perverse. As to inevitability, for example, Posner and Vermeule, borrowing freely from the right-wing German theorist Carl Schmitt and legal realists, argue that the law’s constraints are ineluctably undermined by what they call legal “black holes” (where no law applies) and “grey holes” (where law applies only in very general or vague terms). The Administrative Procedure Act (APA), for example, is designed to subject administrative agencies to judicial review. But it exempts from all review—and therefore subjects to a legal “black hole”—actions “committed to agency discretion.” This could include anything from CIA employment decisions to the closure of military bases. And even where judicial review applies, the authors characterize the APA’s standards of “good cause” and “arbitrary and capricious” as “grey holes,” providing only a “façade of lawfulness,” because their vagueness permits courts to defer to the executive rather than exercising meaningful review.
Posner and Vermeule contend that more specific statutory regimes have also failed to constrain the president. The War Powers Resolution, the National Emergencies Act, and the International Emergency Economic Powers Act, for example, all enacted after Watergate to rein in presidential action, have proved largely ineffectual. Presidents have repeatedly argued that the statutes do not apply. The Obama administration recently did so when it implausibly claimed that the War Powers Resolution—requiring congressional approval of any use of troops in “hostilities” that last more than sixty days—did not apply to the military intervention in Libya. And Congress has failed to exercise meaningful oversight even where such statutes call for it to do so.
All of this seems right, to a point. But ironically, Posner and Vermeule base their “legal realist” critique on an excessively formalist assessment of whether law constrains, looking almost entirely at statutory language on its face and at judicial decisions. They argue that legal standards are often manipulable, and that judges therefore often defer to the executive. But the fact that law usually does not dictate particular executive decisions—hardly a surprising revelation—does not mean that it does not constrain them. And in particular, it is misguided to look only at judicial decisions, for law operates outside the courts as well.
Thus, while the APA’s open-ended standards undoubtedly permit judges to defer to the executive, they do not require them to defer. Some judges will defer; others will not, as when the Supreme Court in 1983 reversed the National Highway Traffic Safety Administration’s repeal of a requirement for passive restraints in all new cars, or when the D.C. Circuit Court in 2008 rejected the Environmental Protection Agency’s rules for mercury emissions. The executive generally cannot know in advance whether court review will be strict or deferential, and that uncertainty itself has a deterrent effect on the choices it makes, even in the many cases that do not end up in court. In my experience, lawyers for the executive branch generally take legal limits seriously. They take an oath and have been trained to uphold the law. They know that claims of illegality can undermine their programmatic objectives. They cannot predict when they will end up in court and so try to avoid legal challenges. To focus exclusively on specific judicial decisions is to miss law’s daily operation outside the courts.
Similarly, to look only at enacted laws misses the checking role that legislators play through other means—such as holding oversight hearings, launching investigations, or simply requesting information about executive practices. The experiences of executive officials, who devote much of their time to compliance with legal mandates and to defending their agency’s actions in Congress and the courts, contradict Posner and Vermeule’s armchair claims that legislative and judicial checks are illusory.3 And President Obama, who has had to fight Congress—and has often lost—on virtually every initiative he has pursued, from economic reform to health care to Guantánamo’s closure, would certainly be surprised to learn that his power knows no limits.
The authors’ treatment of the role the Supreme Court played in cases challenging military detention and trial in the “war on terror” illustrates their inattentiveness to the many ways law operates below the surface of reported judicial decisions. They note that the Supreme Court did not decide a national security case until 2004, when it agreed to hear appeals from Guantánamo detainees and a US citizen held as “enemy combatants”; that the Court’s detention decisions largely addressed only threshold issues, such as whether Guantánamo prisoners had a right to seek court review; that the Court upheld President Bush’s authority to detain even an American citizen in military custody; and that only 4 percent of the Guantánamo detainees have been ordered released by any court. They are right to emphasize the limited nature of the Court’s decisions. But otherwise, their criticisms are unfair.
There is no evidence that the Supreme Court delayed its intervention. The Court took up the military detention cases as soon as they reached it in late 2003 and early 2004; it is hardly the Court’s fault that cases take time to make their way through the lower courts. Posner and Vermeule suggest that the Court’s May 2003 denial of review in a case challenging immigration hearings that were closed to the public reflected an unwillingness to intervene at an early stage in the crisis following September 11. In several hundred immigration hearings held in the attack’s aftermath, the public was barred from attending by order of Attorney General John Ashcroft, on the ground that the hearings might reveal information to terrorists. But the practice of secret immigration hearings had come to an end by the time the matter reached the Supreme Court, so the issue was effectively moot. As soon as an ongoing national security controversy reached it, just six months later, in November 2003, in an appeal of a decision denying Guantánamo detainees access to court, the Supreme Court granted review.
And the Court’s decisions were the opposite of deferential. In the Guantánamo cases, the Court rejected President Bush’s claims that his power to detain could not be reviewed by the courts at all; that the laws of war were inapplicable to al-Qaeda suspects; and that the president had unilateral authority to create military tribunals that departed from domestic and international law. On the matter of judicial review, it refused to defer to Bush even after Congress and the president acting together sought to deny that right.
While the Court sustained President Bush’s authority to use military detention for Yaser Hamdi, an American citizen, the decision hardly reflects supine deference. The Court limited its holding to the narrow circumstances presented, emphasizing that Hamdi was caught carrying a weapon on the Afghanistan battlefield as part of a Taliban regiment. Even so, the decision was sharply divided, 5–4. And the majority rejected President Bush’s claim that Hamdi was entitled to no hearing whatever, ruling that he must be given notice and a meaningful opportunity to respond before a neutral factfinder. Faced with those requirements, the Bush administration released Hamdi.
Whatever else one might say about these decisions, they refute Posner and Vermeule’s contention that judges are inevitably deferential during times of crisis. Moreover, the US Supreme Court was not alone. Courts in the United Kingdom, Canada, Germany, Israel, as well as the European Court of Human Rights, have all actively reviewed and overturned counterterrorism measures since September 11.
1 See, for example, Arthur Schlesinger Jr., The Imperial Presidency (Houghton Mifflin, 1973) and Garry Wills, Bomb Power (Penguin, 2010). ↩
2 See Clinton Rossiter, Constitutional Dictatorship: Crisis Government in Modern Democracies (Princeton University Press, 1948). ↩
3 See Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (Norton, 2007). ↩
See, for example, Arthur Schlesinger Jr., The Imperial Presidency (Houghton Mifflin, 1973) and Garry Wills, Bomb Power (Penguin, 2010). ↩
See Clinton Rossiter, Constitutional Dictatorship: Crisis Government in Modern Democracies (Princeton University Press, 1948). ↩
See Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (Norton, 2007). ↩