They Say: “Executive Power Will Snowball Out of Control”
Claims of abuses in executive power are grounded in the naturalistic fallacy and the slippery slope fallacy. Furthermore, critics rely on outdated examples and fail to present a holistic analysis of executive power. Even if they are right about executive power abuses, the judiciary is not a better alternative; a litany of historical examples prove.
Posner and Vermeule 07 – Eric A., Kirkland and Ellis Distinguished Service Professor of Law and Arthur and Esther Kane Research Chair at the University of Chicago; Adrian, John H. Watson Professor of Law at Harvard University and previously Bernard D. Meltzer Professor of Law at the University of Chicago, 2007 (Terror In The Balance Security, Liberty, And The Courts, Published by Oxford University Press, ISBN 0-19-531025, p. 56-57)
Concerns about increasing executive power often rest on an implicit status quo bias, or naturalistic fallacy. The assumption is that the scope or level of executive power before the emergency was optimal. But this need not be so, and there is no general reason to think it will be so; consider the finding that the 7/7 attacks in London went unprevented because the United Kingdom’s intelligence services, who knew something about the plotters, had too few resources to investigate them adequately.82 Emergencies may release the polity from a sclerotic equilibrium in which executive power was too feeble to meet new challenges, as we illustrate in chapter 4. One interpretation of history is that emergencies allow presidents to obtain powers that are necessary to cope with new problems. Our original constitutional structure, with a relatively weak presidency, reflects the concerns of the eighteenth century and is not well adapted to current conditions.
Finally, to the extent that the critics of executive power envision judicial review as the solution, they are whistling in the wind, especially during times of emergency. The critics envision an imperial executive, who is either backed by a sustained national majority or else has slipped the political leash, and who enjoys so much agency slack as to be heedless of the public’s preferences. In either case, it is not obvious what the critics suppose the judges will or can do about it. As we will recount in more detail in later chapters, the judges proved largely powerless to stem the tide of the New Deal, in conditions of economic emergency, or to stop Japanese internment during World War II, or to block aggressive punishment and harassment of communists during the Cold War. What is more, many of the judges had no desire to block these programs. Judges are people too and share in national political sentiments; they are also part of the political elite and will rally ’round the flag in times of emergency just as much as others do.83
Critics of executive power implicitly appeal to a slippery-slope argument: once executive power is increased to meet an emergency in a manner that is necessary and reasonable, it will unavoidably expand beyond what is necessary and reasonable. As we emphasize in chapters 4 and 5, the problem with this argument is that there is no evidence for it and no mechanism that generates such a slope. The critics focus obsessively on pathological polities like Weimar, ignoring that current well-functioning liberal democracies do not present the same conditions that led to dictatorship in 1933. More recent work in comparative politics suggests that grants of emergency powers or of decree authority to executives do not systematically end in dictatorship.84
Arguing that executive power would snowball out of control oversimplifies the equation of presidential power. Critics usually fail to distinguish the effects of “presidency as an institution” and “presidency as individuals.”
Posner and Vermeule 07 – Eric A., Kirkland and Ellis Distinguished Service Professor of Law and Arthur and Esther Kane Research Chair at the University of Chicago; Adrian, John H. Watson Professor of Law at Harvard University and previously Bernard D. Meltzer Professor of Law at the University of Chicago, 2007 (Terror In The Balance Security, Liberty, And The Courts, Published by Oxford University Press, ISBN 0-19-531025, p. 54)
First, the executive-despotism concern supposes that executive officials desire, above all, to maximize their power. As Daryl Levinson has emphasized, both for officials generally and for executive officials in particular, it is hardly obvious that this is so, at least in any systematic way.76 Lower-level executive officials and administrative agencies have many other possible goals or maximands, including the desire to enjoy leisure or to advance programmatic or ideological goals—goals which will usually be orthogonal to the tradeoff between security and liberty and which might even include the protection of civil liberties. The same is true for presidents: some have been power maximizers; some have not. Moreover, even with respect to power-maximizing presidents, critics fail to distinguish the man from the office. Presidents as individuals do not internalize all of the gains from expanding the power of the presidency as an institution, because those gains are shared with future presidents and senior executive officials.77 Conversely, presidents as individuals do not fully internalize harms to the institution and may thus acquiesce in limitations on executive power for partisan or personal advantage. The latter point may be more pronounced in emergencies than in normal times, because emergencies shorten the relevant time horizon; policymaking for the short run looms larger than in normal times. (We bracket for now the question of whether this is bad, an issue taken up in chapter 2.) Emergencies thus increase the divergence between the utility of individual officeholders and the institutional power of their offices, which extends into the remote future, beyond the horizon of the emergency.
Critics also fail to account for political motivations. Politics can incentivize the executive branch to maximize its power. However, this does not mean politics will always push a president to test the boundaries. Critics conflate increases in executive power with aggrandizement.
Posner and Vermeule 07 – Eric A., Kirkland and Ellis Distinguished Service Professor of Law and Arthur and Esther Kane Research Chair at the University of Chicago; Adrian, John H. Watson Professor of Law at Harvard University and previously Bernard D. Meltzer Professor of Law at the University of Chicago, 2007 (Terror In The Balance Security, Liberty, And The Courts, Published by Oxford University Press, ISBN 0-19-531025, p. 54-55)
Second, whatever the intrinsic preferences of presidents and executive officials, politics sharply constrains their opportunities for aggrandizement,78 especially in times of emergency. The president is elected from a national constituency (ignoring the low probability that the Electoral College will make a difference). A first-term president who seeks reelection to a second term, or even a second-term president who seeks to leave a legacy, will try to appeal to the median voter, or at least to some politically engaged constituency that is unlikely to be extremist in either direction. If the national median or the political center favors increased executive authority during emergencies, then the president will push the bounds of his power, but if it does not, then he will not; there is no general reason to think that national politics will always push executive authority as far as possible, even during emergencies. Of course, during emergencies, the public will often favor increased executive power, and this may be fully sensible, given the executive’s relative decisiveness, secrecy, centralization, and other advantages over Congress and other institutions. Note, in this connection, the important finding that political constraints on the executive are associated with increased terrorism;79 shackling the executive has real security costs. The critics of executive power typically assume that executive power not only expands during emergencies, but expands too far. However, the critics supply no general reason to think this is so; they systematically conflate increases in executive power with “aggrandizement,” a normatively loaded concept which connotes an unjustified increase. We return to this point shortly. Here, the point is just that the expansion of presidential power during emergencies may reflect nothing more than the demands of the politically effective public, rather than intrinsic opportunism.
The political constraints on the executive branch and the president are partisan as well as institutional. The president is the leader of a political party but is also beholden to it. The party constrains the president in various ways, and it is not necessarily in the interest of a single party to enhance the power of the executive during emergencies. For one thing, the president’s party may not win the next presidential election; for another, his party may have many other bases of power, including Congress, the judiciary, and local institutions. Expanding the president’s personal or institutional power need not be in the interests of partisan politicians who govern behind the scenes. Opposition parties, of course, have powerful incentives to criticize the expansion of presidential power during emergencies, portraying small adjustments to the legal rules as omens of a putsch. In emergencies, partisan criticism can make the political constraints on presidents even tighter than during normal times, a point we emphasize in chapter 5. Governmental decisionmaking is often more visible during emergencies than during normal times; emergency policymaking is more centralized, even within the executive branch, and more closely associated with the president; the resulting policies often present a larger target for political attack.