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Defending the Indefensible

Eric Posner gives intellectual cover to the unitary executive

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Per Posner, legal restraints on the executive branch have been replaced by “political considerations,” by which he means “democratic” public approval, to constrain executive action.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.



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