"The Executive Unbound: After the Madisonian Republic," by Eric A. Posner and Adrian Vermeule

Published by Oxford University Press USA (2011)

Reviewed by Benjamin Kleinerman

The thesis of The Executive Unbound: After the Madisonian Republic is directly relevant to one of the underlying themes that animates the title of this blog. One meaning of the term “lawfare” refers to the ways in which the national security establishment needs to worry about the aggressive, “war-like,” use of the law to punish it for past actions. That is, law has become a potent weapon in the modern national security state—so much so that paying attention to the law has become an essential component of national security itself. Whether this development is good or not is something of an open question. For instance, in his provocative and important book, The Terror Presidency, Jack Goldsmith ruminates on this development. Instead of simply being concerned with getting the job done, agents in the field must concern themselves as much with what they can and cannot do according to the law. And I would suggest that it is partially this fact that led the Bush administration to seek a legal doctrine of executive power that would permit the wide-ranging discretion it thought necessary to conduct the “war on terror.” The Bush administration sought to legalize what I have argued elsewhere is rightly thought of as extra-legal discretion because the world of “lawfare” required a legal response to the inevitable legal challenge. Into this debate, enter Eric Posner and Adrian Vermeule to suggest that the whole notion of the executive administration being in any meaningful sense bound by the law is wrong. And they argue this not as a matter of normative principle, but as an empirical reality that they claim accurately represents the true state of affairs in the modern administrative state. Much as their intellectual guiding light, Carl Schmitt, aimed to dethrone the authority on legal liberalism in Germany, Hans Kelsen, so Posner and Vermeule aim to dethrone the authority on legal liberalism in the United States, James Madison. Even according to their own argument, however, the book is mistitled. Although they suggest that the executive is “unbound” by law, they argue throughout that the executive is still bound--if not by law, then even more so by politics. Like many others from the American legal realist perspective out of which they emerge, Posner and Vermeule proclaim Carl Schmitt – but then choose not to follow him, so to speak, “all the way down.” Where Schmitt’s sovereign is truly unbound, their “sovereign,” the executive, remains bound not just by the desire for reelection, and thus by the need to satisfy the public enough to be reelected, but also, even more immediately, by the politics of public opinion. In fact, the title of their book could as sensibly have been “The Executive Constrained” as the title they chose. The constraints are not legal because, according to the school of legal realism, legal constraints as such are impossible. In their view, to say that the executive branch is “bound” by the law is to say that it is bound by make-believe manacles that cease to exist as soon as we see them for what they are. But, even as the law is ineffective as a bind on the executive, politics remains very effective. Before exploring the problems that inhere in this radical disjunction between law and politics, note first how little attention the authors give to the actual arguments of the supposed theorist of legal liberalism whom they claim to dethrone, James Madison. It is, in fact, not very much more than the attention they give to Schmitt; they indeed occupy a ground of legal realism that makes it easy to offer an alternative construction of law-as-politics, but makes it oddly difficult deeply to engage either with the radical reactionary, Schmitt, or with the theorist of constitutional stability, Madison. In their characterization, James Madison is the intellectual father of the school of legal liberalism which asserts that “representative legislatures govern and should govern…while executive and judicial officials carry out the law.” The fundamental assumption of Madisonian legal liberalism, they claim, is that “law does and should constrain the executive.” By contrast, they aim to show that law does not constrain the executive and, because the executive is still bound by politics, law should not constrain the executive. Of course, formulating their argument in this manner begs the question of whether the politics of executive constraint would be as effective if we simply gave up on the legal notion that the executive should be constrained. But, even prior to this critique, it is simply unfathomable how the authors can find James Madison the intellectual father of a view according to which legislatures do and should govern—with the executive and the judiciary as seemingly subordinate institutions—and laws will and should constrain government officials on their own. In Federalist #48, Madison writes: “Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power?” Madison’s whole theory of government, after all, is predicated on the assumption that “parchment barriers,” or mere laws, are an insufficient constraint on governmental power. Mere laws are inefficacious: “some more adequate defense is indispensably necessary for the more feeble, against the more powerful, members of the government.” In fact, Madison’s theory of the separation of powers is predicated on its necessity in order to constrain the overweening power that would follow from its concentration in any one branch of government. But that theory looks to the ambition or interests of political actors who occupy independently empowered branches of government to prevent the concentration of power. So far from assuming laws will be enough, Madison’s theory of the separation of powers begins from the fact that they are not enough. One might critique Madison for his assumption that political ambition will lead to the imposition of constraints: what happens if legislators’ ambition, namely their ambition to be reelected, leads them to give too much power to the executive branch so as to avoid responsibility? But Posner and Vermeule never get this far because they simply do not concentrate much on the actual political thought of James Madison. Instead they use Madison only as a stand-in for what they claim is the reigning opinion in the legal academy. The problem, however, is that in failing to understand Madison on his own terms, they fail to understand the true grounds of the system of separation of powers that they spend the book critiquing. Members of the current legal academy did not craft our Constitution. Insofar as Posner and Vermeule’s target is the constitutional order itself, rather than what I would as readily admit are mistaken conceptions of it that dominate in the legal academy, their shot would be more accurate if they wrestled with the actual thought of one of its principle architects. That Madison might be fairly critiqued for his assumptions about the ambitions of Congress points to a further problem with The Executive Unbound. In their characterization of Madison, they turn him into a legislative supremacist. In fact, the passages I just discussed from The Federalist are in the context of his worries about the legislature overrunning the other two branches of government because “the legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.” In other words, Madison is concerned about whether the other two branches of power can remain independent from the legislature. Thus, so far from expecting them merely to carry out the will of the legislature, Madison here worries that they can remain independent from it. In the 1790s, Madison does end up worrying more about the power of the executive than he had at first. But, again, he worries precisely because he knows that the laws will not be enough to restrain the powers of the executive. So far from an easy confidence that the executive will be constrained by the law, he begins seeking constitutional and political solutions to the problems posed by the failure of the law as a constraint. Posner and Vermeule’s characterization of “legal liberalism,” at least as articulated in the United States, is fundamentally misguided. Much recent scholarship has shown—and very little of which they cite—the liberal tradition is much more aware of the problems inherent in legal limitations on government than Carl Schmitt admitted or realized. Rather than blind faith that legal limitations will be enough, the liberal tradition starts from the fact that, although such legal limitations are essential, they are not self-enforcing. And, because they must be enforced by the very people who should be subject to them, liberalism must wrestle with finding a solution to this endemic problem. Although one might credibly suggest that its solutions are either insufficient or unnecessary, it is simply untrue to accuse liberalism of a blind faith in the automatic enforcement of law. Finally, even on its own terms, this book is problematic. It is problematic because it is not nearly as realistic as it claims to be. Though the authors claim to be beyond law and attentive to the realities of politics—it seems far from accidental that they cite at least as many political scientists, especially rational choice theorists, as law professors—their view of the law betrays an oddly legalistic turn of mind that is at odds with their realist pretensions. In their presentation, the law is only effective if political actors are singularly attentive to it before the fact and singularly obeisant to it after its verdict has been announced. So, for instance, they dismiss the effectiveness of the law, and of the other two branches who speak for the law, in the “war on terror” because the various judicial opinions, Hamdi, Hamdan, and Boumediene, did not have any real effect in changing the behavior of the executive branch. Instead, the Bush administration changed its behavior in the “war on terror” only after the political situation had changed because the public was no longer as willing to support the war. Moreover, in their view, these judicial opinions did not even go that far, insofar as none of them actually called for the immediate release of any prisoners. Although there is something to be said for the claim that we may put too much faith in judicial opinions as a check on executive power, however, it is simply untrue to claim that these particular opinions had no practical effect. If nothing else, the opinions contributed significantly to a changing political environment in which the unfettered action of the early Bush administration became unacceptable. This points finally to the problem underlying the whole approach of this book. The American founders, especially James Madison, were not the sort of “pie-in-the-sky” idealists that Posner and Vermeule make them out to be. They understood themselves as political realists in their own day. In fact, their realism was, I would submit, much more profoundly realistic insofar as they recognized that, while the law was ineffective without politics, politics was also significantly shaped by the law. Where Posner and Vermeule assume that because the law is not self-enforcing it is fundamentally enfeebled, the founders understood the potent political force of those who claim the authority of the law. Under the authority of the law, the other two branches can have the political authority to stand up to executive aggrandizement. This is perhaps the most insidious ramification of this book. Posner and Vermeule count on politics to continue to constrain the executive even as the law is insignificant. But, were we actually to embrace their conclusion and accept the insignificance of the law, the politics of executive restraint would lose its most potent weapon. (Benjamin Kleinerman teaches constitutional democracy at James Madison College, Michigan State University, and is the author of The Discretionary President: The Promise and Peril of Executive Power.)