As I read The Executive Unbound, I found myself in a world turned upside down. I take the following to be not only true, but obviously true: Today and in the recent past, all-but-uncheckable presidents have involved us in unneeded wars, invaded our liberties, and subjected us to economic controls that bear an uncomfortable resemblance to fascism.
Some hope for relief from a return to limited government, as set forward in the Constitution, but that path has failed. As Lew Rockwell explains in Against the State: “This solution can’t work. It suffers from a fatal flaw. The Constitution creates a government that is the judge of its own powers. The branches of the government, legislative, executive and judicial, are in theory supposed to check and balance each other. The problem with this is that the Supreme Court ... is itself part of the federal government. In a dispute between the federal government and the people, it is unlikely to side against the government.”
Now we are in a position to see the astonishing character of The Executive Unbound. Eric Posner and Adrian Vermeule are eminent and influential academic lawyers. (Posner, by the way, is the son of the even more eminent Richard Posner.) They agree that the hope for limited government through the separation of powers, what they call the “Madisonian Republic,” has failed. Far from deploring this, though, they embrace it with enthusiasm.
In their view, we must have a strong government in order to cope with the continual crises that confront America. Not any strong government will do, either. It should be a government with a powerful executive. Only a dominant leader can cope adequately with an emergency: legislatures, by contrast, are mired in interminable debates and arrive, at best, at general rules rather than the necessary immediate action. “Emergencies and crises, in our definition, are just one end of a continuum, in which the economic and political environment changes with maximum speed; problems or threatened problems require immediate response and large-scale, extremely rapid shifts in government policy ... legislatures are incapable of supplying the necessary policy adjustments at the necessary pace.”
They quote with approval the German jurist Carl Schmitt who “famously claimed that legislatures and courts ‘come too late’ to crises in the administrative state, meaning that in crises the rate of policy change becomes so great that legislators and judges have little choice but to hand the reins to the executive.” They find Schmitt a more perceptive theorist for our times than James Madison. True enough, Schmitt was in the years 1933–1945 a member of the Nazi party; but his insights can readily be separated from his fascist propensities.1
To those, like me, who say that the executive dictatorship they want has led to disaster, they answer: Not at all! Does not everyone acknowledge that Lincoln and Franklin Roosevelt, both of whom acted in the lawless way they want, were great leaders? “If there is consensus about anything in American history, it is that Lincoln and Roosevelt were great presidents.” (Theodore Roosevelt also qualifies as a great president, but they do not claim here the backing of a consensus.) Lincoln suspended civil liberties in order to help win the Civil War, and Roosevelt wisely concealed his plans to bring America into World War II from the naively isolationist American public. “Franklin Delano Roosevelt understood the threat posed by Nazi Germany to the United States’ long-term interests long before the U.S. public did ... he needed to devise ways to ensure support for his particular war aims and strategies, whose particular justifications would always remain at least partially obscure to the public.” More recently, the Bush and Obama administrations needed to act illegally to cope with the massive economic crisis that began in 2008.
It will come as no surprise that none of these assertions strikes me as plausible. The warmongering policies of Lincoln and Roosevelt are matters for dismay rather than acclamation; and no financial bailout was needed to end a crisis that had in fact been brought about by the Fed’s reckless policies.
At this point we might appear to have reached an impasse. Posner and Vermeule rest their case for a powerful executive on their assessments of particular incidents. I dispute their interpretation of these cases. Must we not at this point put the book aside, and proceed to analyze the cases to see whether their praise, or my condemnation, of the policies of the strong executives better accords with the facts?
I do not think so. We can ask: even if, for the purpose of argument, we accepted their claims about these historical events, would their case for a strong executive be convincing?
They are astute enough to recognize a strong objection to their own position. Even if presidents’ strong leadership have helped us through particular crises (as I do not for a moment believe), do not these positives have to be set against the chance that a president will act badly? Do the risks of disaster outweigh the benefits of fast action during a crisis?
How could we tell? Perhaps, faced with uncertainty, we ought to be cautious. It will come as no surprise that our authors, ardent for plebiscitary dictatorship, do not think so. They bemoan “tyrannophobia,” an unreasoning fear that they find had a bad influence throughout much of America’s history. They fear that restrictions aimed to prevent a power-seeking politician from gaining dominance may inhibit a wise leader who aims at the public interest.
Does not our question recur: how can we assess the risks and costs of these possibilities? (Again, it needs to be borne in mind that I am here speaking from within the authors’ framework.) The authors suggest that the public has good ways to judge whether a president sincerely seeks the public good or is a mere seeker of personal power. (It would be too much, I suppose, to ask the authors to bear in mind that politicians almost invariably are evil.) If, e.g., a president appoints the leaders of the opposing political party to high office, the public has good grounds to trust him. Roosevelt, faced with war in Europe, appointed two Republicans, Henry Stimson and Frank Knox, to positions in his cabinet. If Roosevelt had been intent on a nefarious scheme against the public good, would not these opposition leaders have been able to monitor his plans and expose him?
Their example is ill-chosen. Stimson and Knox were strong partisans of intervention in Europe. Roosevelt took great care that the alleged opponents he appointed to high office in fact supported his policies.
The difficulties with the claim that the public can evaluate the sincerity of a politician’s concern for the public good go beyond the defects of this example. The danger of a “bad” leader with too much power is not confined to instances in which an insincere person falsely claims concern for the public good as a means to attain power. What if the unbound executive really does consider himself a servant of the public good but has radically mistaken beliefs about what is best? Tests for sincerity are of no use here.
More generally, the authors argue that political leaders respond to public opinion. If they do not, they will be turned out of office. “What, then, prevents the executive from declaring spurious emergencies and using the occasion to consolidate its power — or, for that matter, consolidating its power during real emergencies so that it retains that power even after normal times return? ... Could this happen in the United States? The answer is, very probably, no. The political check on the executive is real. Declarations of emergency not justified by publicly observable events would be met with skepticism ... electoral democracy is alive and well.” This contention ignores the extent to which public opinion can be manipulated by a powerful leader, in collaboration with a kept press. The authors’ faith in the power of public opinion is touching but not convincing.
The authors’ defense of the Führerprinzip is repellent; but the book has at least the value of showing how the world looks to a cast of mind enamored with power.
- 1They do not confine their distaste for legislation to situations of crisis. They are ardent partisans of administrative law. Vermeule has in a hostile review reacted in horror to Philip Hamburger’s excellent work of demolition, Is Administrative Law Unlawful? (University of Chicago Press, 2014).