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Defending the Indefensible
Eric Posner gives intellectual cover to the unitary executive
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My college alumni magazine is featuring an article entitled “Octopotus” on the kind of reasoning in some jurisprudential circles that has supported the “unitary executive.” The article is about the University of Chicago Law School’s Professor Eric Posner, whose most recent book is The Executive Unbound: After the Madisonian Republic, co-authored with Harvard’s Adrian Vermeule. Posner and Vermeule would appear to agree that when George W. Bush declared the US Constitution to be just a piece of paper he was being candid and also acting in the best interests of the American people. Posner unambiguously sees the non-constitutional accumulation of presidential power as a good thing, enabling rapid response to crises, and describes the Madisonian separation of powers in government as a “historical relic.”

The article, written by one Jason Kelly of the magazine staff, is a strange amalgam of political correctness combined with a puff piece on Posner’s Straussian views, which I suspect most U of C alumni would find repugnant if they bother to read the article. Kelly cites “undocumented immigrants” at one point and refers to Posner’s support of executive power as a “common view” in legal circles. He accepts Posner’s lead in defining those who criticize the unitary executive as engaging in “irrational fear” that Posner labels “tyrannophobia,” which colors the discussion that follows. Kelly might equally have referred to critics of Posner as constitutionalists, which would result in a different perception.

Per Posner, legal restraints on the executive branch have been replaced by “political considerations,” by which he means “democratic” public approval, to constrain executive action. He explains that presidents operate in a bubble defined by their own popularity and what the public will accept “to maintain the credibility to govern” which he also refers to as “political legitimacy.” He expands on this by asserting that the “public values stronger federal regulation of national concerns” because the nation has evolved politically, no longer restrained by “rule of law,” into an “administrative state.” It is “a natural development, reflecting public opinion and the institutional advantages of the presidency.”

Eric Posner further explains that “Most people want government to foster security and prosperity” and the “administrative state best serves those ends” because “it became evident to people that they benefit from having most policy being made at the federal level … making them willing to give up that kind of fine-grain choice in return for the benefits that you get from having a very powerful government and a very powerful president.”

Posner takes particular exception to the “slippery slope argument that, for example, [a White House decision to undertake] targeted killing could be used against average citizens,” refuting the notion by asserting that there is nothing sinister in such a policy beyond possibly bad-decision making, saying “It’s just wild exaggeration to say that the president who does those things is a tyrant.”

Posner is comfortable with the only restraint on executive power being the somewhat amorphous consent of those who are generally speaking disengaged and virtually powerless in our political system. His view would astonish America’s Founders, who saw democracy as little more than mob rule and who, as a consequence, devised a republic resting on a system of constitutional restraints to avoid giving that power to the demos. What the Founders feared even more than an unrestrained presidency was tyranny by the majority, a constraint on government that Posner, ironically, sees as a protection against executive overreach. Be that as it may, real pushback against Washington is largely ineffective as today’s Americans are poorly informed about issues and the media has largely abandoned its role as the Fourth Estate. Meanwhile the government is able to cite secrecy to protect its illegal actions, giving the president the ability to create and manage a suitable narrative supporting his policies, no matter how harmful they might be. It is difficult to imagine that there is a genuine popular consensus supporting illegal detention, targeted killings, torture, warrantless surveillance, secret wars, or an immigration program that includes deliberate non-enforcement of laws, but they are all current government policies.

And, contrary to Posner’s assertion, there is indeed a slippery slope. I’m not sure what Posner means by it being unlikely that an “average citizen” might targeted for death by drone, but certainly three citizens that I know of have been executed in that fashion and several more are believed to be on the death list. Increased use of state secrets privilege is a symptom of executive privilege, violation of what was once regarded as privacy is now systemic, and the United States has been going to war more frequently and without any regard for national interest ever since the constitutional norms to limit the authority to do so were abandoned in Korea. If the main purpose of government as seen from the ground up is, per Posner, to “foster security and prosperity” then the unitary executive has failed miserably, as the United States policy of executive-inspired global armed intervention has made the entire world less safe while the standard of living for most Americans (possibly excluding University of Chicago law professors) has fallen sharply.

Posner studied philosophy as an undergraduate at Yale. He might have been better served if he had paid more attention to history. His views are not dissimilar to those of Carl Schmitt, the Nazi jurist, who argued in similar terms to those promoted by Posner, that a powerful executive is imperative in time of crisis. Schmitt favored a military dictatorship to solve Weimar Germany’s problems. Posner is, in fact, an admirer of Schmitt, having written approvingly “governance through ex post standards, rather than ex ante rules, is inevitable and even desirable where political, economic or military conditions change rapidly and cause exogenous shocks to the constitutional order.”

Like Schmitt, Posner contends in his book Terror in the Balance (also co-authored with Vermeule) that “There is a straightforward tradeoff between liberty and security” where any increase in security requires a decrease in liberty. The argument is itself fallacious because security and liberty are not causally connected, but it is rarely challenged by those in government or in academia. Expanding on his thesis, Posner explained how “Constitutional rights should be relaxed so that the executive can move forcefully against the threat. If dissent weakens resolve, then dissent should be curtailed. If domestic security is at risk, then intrusive searches should be tolerated … The reason for relaxing constitutional norms during emergencies is that the risks to civil liberties inherent in expansive executive power–the misuse of the power for political gain–are justified by the national security benefits.” Posner also wrote in Terror that torture, which he prefers to call “coercive interrogation,” and ethnic profiling are permissible in a crisis; that normal protections in criminal trials should be suspended; and that the ability to commit what are regarded as war crimes is desirable because it can serve as a deterrent.

The tragedy of 9/11 and developments in 1933 Germany exhibit certain similarities, at least in terms of strengthening executive authority. After the shock of the Reichstag fire of February 1933 German Chancellor Adolph Hitler, who did not have a majority in parliament, exploited the situation to obtain passage of the Enabling Act which gave him the authority to ignore parliament and pass laws by decree. The full name of the Enabling Act was, in English, the “Act for the Removal of Distress from People and Reich.” Aided by leading jurists like Schmitt, who argued that a powerful executive could ignore restraints imposed by bureaucrats and constitutions when required to cope with a “crisis,” and supported by conservatives and the army, Hitler quickly moved to consolidate power and the communist and socialist parties as well as any “new” parties were subsequently made illegal. In 1934, upon the death of Hindenburg, Hitler assumed the powers of the presidency and the army began to swear allegiance to him rather than to the constitution. Germany became a dictatorship and the rest is history. The March 1933 election was the last free election in Germany until the creation of the Federal Republic in 1949.

I suppose Posner would respond with a version of “it can’t happen here.” But the truth is that it can happen anywhere and does happen even if a genocidal dictatorship is unlikely to spring up in the United States. Guantanamo happened and continues to happen and Jose Padilla is testimony to the fact that government believes it can ignore the constitutional rights of any citizen. The list of states that have constitutions but that have nevertheless evolved into something like dictatorships is a long one. Those seizing control consistently cite a need for security and efficiency as their principal motives, not unlike the justifications offered by both Republicans and Democrats during the post 9/11 years. The restraints imposed by the US Constitution offer a legal recourse against a President Barack Obama or a Mitt Romney declaring a state of emergency and deciding that whole categories of citizens would benefit from being shipped off to reeducation camps. The White House would cry “terrorism!,” the media and congress would fall in line, and the poorly informed public would believe the fiction being dispensed. That is pretty much what Franklin D. Roosevelt did in 1942 with Japanese-Americans. There was no mob storming the Bastille at that time to protest the threatened fellow citizens and there would be little outcry now if selected minority groups were to be on the receiving end.

Executive primacy is by its very nature a dangerous zero sum game, with political power accruing to the president taken away from the American people, the judiciary, from congress, and from the states. The Posner formula enables bad decisions by the White House to become the unchallengeable norm while Posner himself personally provides intellectual legitimacy to a set of bad ideas not to mention criminal behavior. Consider the government fabrications that led to the rush to war with Iraq as an example of how fraud by government can work. Posner’s granting of de facto carte blanche to someone who, quite possibly by a set of curious chances, winds up in the Oval Office and is restrained only by the limits of his own popularity should be seen as a threat to every American, not as a necessary or inevitable advance in governance.

Philip Giraldi, a former CIA officer, is executive director of the Council for the National Interest.

(Republished from The American Conservative by permission of author or representative)
• Category: Foreign Policy • Tags: Neocons 
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  1. Although the history of the United States,in its early years,was checkered with a drive for centralized power,it was Lincoln and the early Republican Party that consolidated political power in Washington DC. This was followed up with Wilson and the Federal Reserve/Income Tax System,FDR with the numbering and cataloging of citizens using Social Security numbers. Followed by Truman joining the U.N. allowing the President to bypass Congress in declaring war. LBJ with Medicare and Medicaid and now Obamacare, which gives control of one’s personal medical file to the State. So that now,in the 2nd Decade of the 21st Century,the government and to a large extent the Executive Branch of that same government can observe and control an individual citizen’s economic,medical and personal life deciding how much of a citizen’s fruits of his labor he will be allowed to keep,whether or not and what kind of healthcare the citizen can be allowed to receive. Plus,through licensing, can decide and control to a large extent, everything of importance a citizen may choose in life such as a profession,driving a vehicle,gun ownership,property location and a myriad of other things a citizen may be allowed to do or not do down to the tiniest detail. Notice I use the word allowed and not right. So,in the long history of America,we have gone from a nation of inalienable rights to a nation of asking for permission. From Liberty and self responsibility to serfdom. From a limited Republic to a Mobocracy/Empire. And from an executive President with limited powers to an elected dictator. All the mistakes of all the failed nations going back in time are now being repeated despite the warnings of the Founding Fathers and the patriots of today. Isn’t it funny how history repeats itself.

  2. Clint says:

    Dr.Ron Paul,
    “This may be news to the supposed constitutional scholar who is now our president, but if the political process seems inconvenient to the implementation of his agenda, that is not a flaw in the system. It was designed that way. The drafters of the Constitution intended the default action of government to be inaction. Hopefully, this means actions taken by the government are necessary and proper. If federal laws or executive actions can’t be agreed upon constitutionally- which is to say legally- such laws or actions should be rejected.”

  3. Anonymous • Disclaimer says:

    This all sounds an awful lot like the “Divine Right of Kings” – Talk about a historical relic. We are to believe that our executives will act appropriately or risk the wrath of the public not voting for them again?

    What other choice do the voters have other than to vote for a president who will expand executive authority to the detrimiment of to separation of powers and the rights of the people?

    The argument above presented by Posner is just a short hop back to the pre-Enlightenment era where our presidents will become kings in all but name, ruling with the favor of God, and ruling so long as he maintains that favor.

  4. To those that think we are a long way off allowing our government to kill innocents under the guise of security and prosperity one need only consider the more than half a million children in Iraq that our airstrikes and sactions killed during the Clinton years. But it was supposedly necessary to protect the American people from evil Saddam Hussein and to secure our prosperity in the form of cheap oil.
    And while it was obvious to even the most dimwitted in our populace that this reasoning was based upon lies, the majority of Americans stood by and cheered our fearless leader on.
    What was it again that can’t happen here?

  5. Pozner is unwittingly channeling the freedmen and sycophants advising The Divine Octavius Augustus. They said the old Roman Republic needs modest revision so that the Senate can be led by a powerful first citizen who could act with dispatch. The next generation saw Tiberius and Sejanus.

  6. Anonymous • Disclaimer says:

    I’m not worried. Unlike the Weimar Constitution, ours has the ultimate guarantee of Liberty: the Second Amendment to the Constitution of the United States. When tyranny speaks, I still have a vote, one round at a time.

  7. What can I say? Thought-provoking, educational, sobering article. Thank you for this.

  8. Nathan says:

    Posner is wrong anyway. It already HAS happened here. What we did to the Indians constitutes de facto genocide. Look at the population in our part of North American at the time of Jamestown. Look at the population in the late 1800’s. Some of that can be attributed to lack of resistance to certain diseases but after a generation or two that was a non factor. Look at the Cherokees in Georgia. They get a Supreme Court ruling in their favor and Andrew Jackson said, you have made your ruling now enforce it.

    They were subject to ethnic cleansing. The reservations out west lacked the ability to sustain the number of people put on them. (Reminding students of the Holocaust of the ghettos in Poland.) The statements from Sherman and Sheridan describing the Indians (animals, subhuman) were all too similar to the way the Germans described the Jews and were the basis for actions like Sand Creek.

    So yes, it has happened and it might have taken place against the Japenese detainees had the Japanese secured a lodgement on the California coast generating mass hysteria.

    And could happen again. Another attack or two on American soil in the future and it’s all too easy to see the Fifth Amendment destroying NDAA language being used to detain EVERY muslim in this country (women and children included) which, following another attack could easily lead to their massacre. Finding people to do it would be easy. Just read the book “Ordninary Men” about the German police unit sent east for Holocaust duties. You don’t need fanatics to do evil things.

  9. You talk about the so-called “unitary executive,” a very ambiguous and disputed term that you never define, and that the article you cite never even mentions. Even the book you’re discussing doesn’t seem mention it. I haven’t read the book, but the term “unitary executive” apparently appears only twice, each time in a book title in the bibliography. The word “unitary” appears maybe seven times, but never in the context of the unitary executive theory. Did the book you’re talking about even mention that theory, much less emphasize it?

    Anyway, this unitary executive has allegedly been bad for prosperity. That means that if the president had less competence and the non-presidential officials had more – in the unitary executive context, that would be the attorney general and others in the executive branch – then America would be more prosperous. Maybe, but that’s not exactly an obvious what-if.

    Similarly with world-wide (!) security: Posner was presumably talking only about American security, but even so, Congress approved the Iraq and Afghanistan wars. It’s not at all clear that giving Congress or the courts more competence over executive decisions would have made much difference. You yourself say that “congress would fall in line” with a bogus claim of emergency.

    On another subject, where did Carl Schmitt call for a military dictatorship in Weimar Germany? That sounds really bizarre. I know that in 1932 he was calling for a stronger presidency, so it couldn’t have been at that time. (Article 48 gave the Reichspraesident emergency powers.) I don’t claim to know all of his writings from that period, so he certainly might have done that, but I’m skeptical.

    And where did he ever suggest that there’s a straightforward tradeoff between liberty and security? On the contrary, Schmitt was all in favor of the “bourgeois freedoms” in normal (non-emergency) times. In a state of exception, of course liberty sometimes has to be restricted for the sake of security; that’s the definition of an exception. But normally, Schmitt supported bourgeois liberties.

  10. Duglarri says:

    I think the basis for Posner’s wildly dangerous proposals is a failure of imagination. Just as John Maynard Keynes was unable to recognize the risk that public servants would enrich themselves, Posner seems blind to the possibility that a President might use these powers to secure his position- permanently. If you believe that torture and murder are the proper response to an emergency, and justified by it, why elections? Why not President for the duration of the emergency?

    Cancelling those would seem like a very short step beyond the powers he would willingly grant his ideal Presidency.

  11. Aaron – Unitary executive is the generally accepted expression to describe the aggrandisement of presidential power, so I used it in my article even though Posner and Vermeule did not use those words themselves.

    Posner justifies a stronger executive claiming that it is needed for security and prosperity. I am merely noting that it has done neither.

    Standard bios of Schmitt describe his close relationship with a number of leading Reichswehr generals in the 1920s and note his desire to have them take the lead in a crisis. Schmitt believed that liberties would be and should be curtailed in a crisis situation, i.e. trading liberties for security.

  12. Anonymous • Disclaimer says:

    Enjoyed this piece and appreciate the cogent arguments. I especially liked Mr. Giraldi’s refutation of the notion that security and freedom are a zero-sum game. He responded, “The argument is itself fallacious because security and liberty are not causally connected, but it is rarely challenged by those in government or in academia.” Unfortunately the myth [Lie?] has become internalized in our society after decades of relentless big-C Conservative (proper noun, not the lower-cased adjectival form) indoctrination.

    I do contradict the end of one statement by the author, however.

    Mr. Giraldi wrote, “[T]he United States has been going to war more frequently and without any regard for national interest ever since the constitutional norms to limit the authority to do so were abandoned in Korea.”

    Many seem to forget that international treaties, duly signed, and ratified by the Senate, are Constitutionally the law of the land. Under the UN Treaty, it was lawful; and indeed we were obligated to participate in the police/corrective action to oppose North Korea’s illegal invasion of South Korea. One may recall that Truman/Acheson began mobilizing our military almost immediately, but Truman waited to dispatch them until the UN had voted on the action. It is unknowable, I think, what Truman would have done if the USSR had been present at the emergency Security Council meeting and vetoed the decision (as latter day pundits have assumed they would have).

    The same justification per mutual defense treaty has been used many times since then, though on much feebler grounds: In the Balkans by Pres. Clinton, per the NATO Treaty. Ditto, eventually, in Afghanistan, though Pres. Bush Jr. rejected that at first. It was not used for military action in The Lebanon in the 80s, Grenada, The Dominican Republic, Panama; nor, as I recall, for Vietnam. Kuwait I think was a UN police action. Iraq? GWB bollixed that. And (need I add?) none of the military actions since 1941 have been declared wars. (Nor have any involved “letters of reprisal,” the forgotten legitimate, Constitutional manner of attacking some enemy.) In other words, Mr. Giraldi’s points about “more frequently and without any regard for national interest” are well taken, but Korea was direct application of “Constitutional norms.” I also judge that establishing the authority of the UN to oppose conquest has served the world well over the decades.
    – – – – – – – –
    This UN/Truman/Korea issue was mentioned by “libertarian jerry” (13 September, 6:41 am), who wrote, “Truman joining the U.N. [sic-no comma] allowing the President to bypass Congress in declaring war.” Not only is this simplistic, it is factually wrong:
    – Truman did not join the UN, the United States did. In fact, the Allies had been discussing a post-war United Nations since at least 1944, while FDR was still keeping Truman out of the loop. If I recall correctly, they even used that name.
    – Truman did not bypass Congress because it had ratified the UN Treaty that he Constitutionally then had to follow.
    – War was not declared regarding the Korean conflict, not against N.Korea, the Soviet Union, the North’s hardware and software supplier, nor Communist China.

  13. CK MacLeod says: • Website

    Not only did Carl Schmitt believe that “liberties would be and should be curtailed in a crisis situation,” so does virtually everyone else, including, I strongly suspect, Mr. Giraldi. The differences tend to arise over the definition of crisis: Do we need to have a plague killing large numbers of people in order to require citizens to stay at home, or is the mere threat of a plague enough, and so on.

    Schmitt is, to say the least, a complex figure. He argued that, if the Weimar government did not employ emergency powers against subversive threats, it would fall. It didn’t employ those powers. It fell. He concluded that, as he had argued quite coherently, liberal democracy like other republican forms of government going back to the ancients, could not derive from its own precepts the basis for determining when the plague (pathogenic or political) was “really” an emergency, or just a threat. That determination would always be left to, be defined by, and in turn actually define true sovereignty (or potentially reveal its absence and bring on chaos or societal fragmentation). This view was clearly articulated by Schmitt, but hardly unique to him. It goes back to ancient times, and recurs again and again, from the origins of history to the latest headlines from the Middle East, because it is a universal human/social predicament.

    That doesn’t mean that the likes of Posner (or Schmitt) are un-criticizeable, or for that matter that Bush or Obama “War on Terror” policy is good and just. It does mean that the essentially legal idealistic view being put forth here, and common in both right and left libertarian circles will remain inadequate to the actual questions, and usually consist repetition of the same initial premises: lawful action is preferable to unlawful action, and peacetime is preferable to wartime, and, in short, it’s better not to have to deal with plagues and enemies.

  14. “Unitary executive” is not “the generally accepted expression to describe the aggrandisement of presidential power.” Look it up in Wikipedia if you want to see what it means. There’s a much more accurate and accepted term for a strong executive: namely, a strong executive, or a strong president. But that doesn’t sound as fancy.

    Schmitt simply did not call for a military dictatorship. Saying that he did is ridiculous; stuff like that doesn’t do much for credibility. Schmitt was associated with Papen and Schleicher, both associated with a strong military, but none of the three called for a military dictatorship. Schmitt called for, um, a strong executive.

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