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Copyright (c) 2010 The Ohio State University

Ohio State Law Journal


2010
Ohio State Law Journal
71 Ohio St. L.J. 699
LENGTH: 29822 words
ARTICLE: Legalism and Decisionism in Crisis
NAME: Noa Ben-Asher*
BIO:
* Assistant Professor of Law, Pace Law School. For helpful discussions of this Article, I thank Ittai Bar Siman-Tov, Samuel Bray, Mary Anne Case, Bridget Crawford, Marianne Constable, Marc DeGirolami, Elizabeth Emens, Alexander Greenawalt, Jamal Greene, Philip Hamburger, Bert Huang, Vicki Jackson, Joseph Landau, Kent McKeever, Linda Meyer, Trevor Morrison, Darren Rosenblum, Adam Sitze, and the participants of the Associates and Fellows Workshop at Columbia Law School, the Pace Law School Faculty Workshop, the Junior Faculty Workshop at Northeast Law and Society, and the Annual Meeting of the Law and Society Association. For excellent research assistance, I thank Claire Knittel.
LEXISNEXIS SUMMARY:

... On the Legalist end, the disaggregation of jurisprudence from politics underscores that many current forms of Legalism in the United States have prioritized jurisprudence over politics. ... Humanist Decisionism departs from both Legalism and Decisionism in its attempt to replace the current prevailing politics of necessity, enmity, and catastrophe shared by Legalism and Decisionism with a politics of friendship and hospitality. ... Part IV examines three contemporary sites of Legalist and Decisionist disputes: (1) "enemy combatant" detentions and the entitlement to habeas corpus relief; (2) the meaning of the Suspension Clause; and (3) the Cybersecurity Act of 2009, pending legislation that attempts to secure cyberspace in times of emergency. ... Legalism The Legalist approach to emergency powers contends that (1) emergencies can and should be governed by pre-determined legal norms (hereinafter "rule of law" ); and (2) the executive branch, along with the other two branches, is constrained by law in emergencies. ... Current Decisionist arguments for deference in "legal grey and black holes" are inspired by the Schmittian-Decisionist proposition that "what matters for the reality of legal life is who decides." ... She argues that (1) civil rights can be fully suspended in emergencies; and (2) in such times of suspension, the executive branch is the primary decision-maker, and its decisions are not bound by legal norms. ... Necessity Decisionists and Legalists share the political assumption that security measures are sometime necessary for the preservation of the state, and that in such cases civil liberties decline.



HIGHLIGHT:

In the years since September 11, 2001, scholars have advocated two main positions on the role of law and the proper balance of powers among the branches of government in emergencies. This Article critiques these two approaches-which could be called Legalism and Decisionism-and offers a third way. Debates between Legalism and Decisionism turn on (1) whether emergencies can be governed by prescribed legal norms; and (2) what the balance of powers among the three branches of government should be in emergencies. Under the Legalist approach, legal norms can and should guide governmental response to emergencies, and the executive branch is constrained by law in emergencies. In contrast, under the Decisionist approach, legal norms cannot respond to all emergencies, and therefore the executive branch is and should be the primary decision-maker in emergencies. Legalists emphasize the importance in emergencies of norms, and Decisionists emphasize the importance in emergencies of decisions.

This Article shows not only the disagreements between Legalism and Decisionism but also the three key political assumptions that they often share. First, they agree that emergencies trigger a necessity for security measures that may curtail civil liberties. Second, they perceive public enemies as distinct from private enemies. Third, they share the view that the primary goal of the state and its laws is the prevention of future catastrophes. This Article offers an alternative approach, which I call "Humanist Decisionism." Humanist Decisionism departs from both Legalism and Decisionism in its attempt to replace the prevailing politics of necessity, enmity, and catastrophe with a politics of friendship and hospitality. This approach has normative implications for the desirability of the legal distinction between public and private enemies, for the level of judicial scrutiny regarding the existence of an emergency, and for the possibility of adopting political and legal measures of friendship and hospitality towards the so-called enemy.
TEXT:

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I. Introduction

Legalism and Decisionism are the prevailing attitudes to governance in emergencies. In the years since September 11, 2001, advocates of Legalism and Decisionism have debated the role of law and the proper balance of powers among the branches of government in emergencies. By "Decisionism" this Article means an approach that emphasizes the limits of ordinary laws and the consequent key role of the executive branch in emergencies. "Legalism," by contrast, is an approach that maintains that ordinary norms can and should govern in emergencies and that all three branches of government must participate in the decision-making process in emergencies.

In U.S. emergency-powers debates, the position associated with executive power is sometimes called "deferential" or "executive unilateralism." In contrast, the position associated with the rule of law is sometimes called "civil libertarian" or "civil libertarian idealism." n1 However, this taxonomy is deficient because it creates an odd asymmetry. The terms "deferential" and "executive unilateralism" mark the proposed institutional decision-maker in emergencies (the executive branch), whereas the term "civil libertarian" emphasizes legal substance (civil liberties). This taxonomy confusingly sets up the debate as one between actors and values. Emergency-powers debates are better understood as debates between Legalism and Decisionism.

Debates between Legalism and Decisionism turn on two main issues: (1) whether emergencies can be governed by prescribed legal norms that apply in ordinary times; and (2) how the balance of power among the three branches of government should operate in emergencies. The gist of Decisionism is that in extraordinary emergency situations ordinary laws are inadequate, and the executive branch must step up and act. Legalists disagree. They focus on the importance of the rule of law, and underscore that all three branches of government are bound by law in emergencies. n2

[*702]

The mapping of Legalism and Decisionism offered here is necessary but difficult. Disputes between these two positions are not new. There have long been different versions of each, and they have at times made important concessions to each other. For example, as we will later see, the Decisionist argument in favor of executive acts outside the law (often understood in terms of absolute power) has long been normalized by saying that it is permitted by law. n3 And on the other hand, some Legalist positions have historically accepted the exercise of extra-legal power under the important condition that the law does not legitimize it. n4 Nonetheless, the Article argues that it is helpful to identify Legalism and Decisionism as two competing sets of intuitions and arguments that are currently at odds in emergency-powers debates.

Despite significant differences between Legalism and Decisionism, the Article ultimately argues that they have more in common than it might seem. Legalism and Decisionism often share three key political assumptions that are frequently overlooked. First, they are in agreement that emergencies trigger a necessity for security measures that may curtail civil liberties. Second, they perceive public enemies as distinct from private enemies. Third, they share a vision of the future as a time when great catastrophes may occur and thus attempt to tailor their approaches to prevent these future catastrophes.

Can we articulate an approach to law's response to emergencies that does not share these assumptions of necessity, enmity, and catastrophe? I argue that we can, and that it is our responsibility to do so. I offer a third approach that I call "Humanist Decisionism." This approach is humanist in that it [*703] values the freedom needed for human flourishing, as do many Legalist approaches, but it is Decisionist in that it recognizes the limits of legal norms and the need for intuition-based decision-making in some situations. Humanist Decisionism departs from both Legalism and Decisionism in its attempt to replace the current prevailing politics of necessity, enmity, and catastrophe shared by Legalism and Decisionism with a politics of friendship and hospitality.

This Article proceeds as follows: Parts II and III elaborate the main premises of Legalism and Decisionism in the context of emergency-powers debates. Part IV examines three contemporary sites of Legalist and Decisionist disputes: (1) "enemy combatant" detentions and the entitlement to habeas corpus relief; (2) the meaning of the Suspension Clause; and (3) the Cybersecurity Act of 2009, pending legislation that attempts to secure cyberspace in times of emergency. Part V discusses the shared political assumptions of Legalism and Decisionism. Part VI presents the main premises of Humanist Decisionism and concludes with several normative implications.

II. U.S. Legalism

The Legalist approach to emergency powers contends that (1) emergencies can and should be governed by pre-determined legal norms (hereinafter "rule of law" n5 ); and (2) the executive branch, along with the other two branches, is constrained by law in emergencies. n6

A. Supremacy of Law in Emergencies

Can the Constitution and other legal norms adequately guide governmental responses to emergencies? The events of September 11, 2001 have triggered a lively and fascinating debate regarding the usefulness of pre-determined legal norms (including the Constitution) in the management of emergencies. n7 The jurisprudential dispute turns on whether emergencies, due [*704] to their unique, unpredictable, and dangerous nature, trigger situations to which ordinary legal norms cannot properly respond. I call this question "jurisprudential" because its primary focus is on the nature of legal norms. In other words, the question is not which branch of government should respond to emergencies or whether the executive is bound in emergencies. (These related issues are discussed separately below.) Rather, the question here is whether emergencies actually challenge the very idea of the "rule of law." Does law "run out" in emergencies? Can the governmental response to emergencies be meaningfully guided by pre-existing legal norms?

The Legalist answer is yes. The response to emergencies must come from within the law. However, there is a spectrum of Legalist positions regarding what it actually means to respond to emergencies from within. Is it enough that Congress passes a law that endorses executive action? Or is there a deeper notion of legality that a democratic legal system should aspire to in emergencies?

While all Legalist approaches agree that the response to emergencies must come from within the legal order, some Legalist positions have conceded that emergencies are indeed unique situations that must trigger specifically-tailored alternative legal regimes. n8 Other Legalist positions disagree and posit that the ordinary legal order is adequately equipped to respond to emergencies. These approaches emphasize a "substantive conception of the rule of law that is appropriate at all times." n9 David Dyzenhaus, for example, argues that mere Congressional approval of executive acts often falls short of a meaningful enforcement of the rule of law. He argues that Congress itself should also be bound by a thick, substantive concept of law. n10

Most Legalist positions agree that seepage from emergencies to normal [*705] times is among the serious dangers of extraordinary responses to emergencies:

[A]n exceptional legal regime-alongside the ordinary one-. . . will permit government to claim that it is acting according to law when it in effect has a free hand and will, the longer the exceptional regime lasts, create the problem of seepage of government outside of the rule of law into the ordinary legal order. n11

Seepage from emergencies to normal times results from the fact that "bright-line demarcations between normalcy and emergency are all too frequently untenable, and distinctions between the two made difficult, if not impossible." n12 Accordingly, "there is a strong probability that measures used by the government in emergencies will eventually seep into the legal system even after the crisis has ended." n13 In addition, "[e]mergency regimes tend to perpetuate themselves, regardless of the intentions of those who originally invoked them. Once brought to life, they are not so easily terminable." n14 Legalists thus conclude that there is no place for extraordinary responses to emergencies outside of the ordinary legal order. n15

Consequently, Legalists have argued that what has come to be known as "grey and black holes" should be eliminated from the legal system. Black holes "arise when statutes or legal rules 'either explicitly exempt[] the [*706] executive from the requirements of the rule of law or explicitly exclude[] judicial review of executive action.'" n16 And grey holes, in the context of executive detention, are "space[s] in which the detainee has some procedural rights but not rights sufficient for him effectively to contest the executive's case for his detention." n17 Some Legalists view grey holes as more harmful than black holes "because the procedural rights available to the detainee cloak the lack of substance. . . . A little bit of legality can be more lethal to the rule of law than none." n18 In other words, because law is not completely absent in grey holes, a fa ade of legality is preserved. n19 Dyzenhaus has correctly identified the German legal theorist, Carl Schmitt, as the twentieth-century source of the idea of grey and black holes. n20 I will return to this issue in Part III.

Another Legalist argument for a thick, substantive notion of the rule of law in emergencies has been articulated by Jenny Martinez. She writes,

[W]hen multiple decisions from the "war on terror" are put together . . . one begins to sense that something noteworthy is afoot. All of the U.S. Supreme Court decisions in the terrorism cases thus far have been focused on questions of process, as have a great many of the lower court decisions. n21

Martinez continues,

[T]he "war on terror" litigation in U.S. courts has been fixated on process to a degree that is peculiar in both senses of that word-that is, there is a pattern of focus-on-procedure-while-sidestepping-substance that is odd enough to require explanation-and there is something particular about [*707] American legal culture at this moment in time that provides at least part of that explanation. n22

Martinez criticizes the judicial side-stepping of substance, arguing that "the focus on process rather than substance comes at a human cost," n23 and that "the 'war on terror' litigation thus far seems to have resulted in a great deal of process, and not much justice." n24

Notably, the Legalist claim that "[t]he Constitution can and does apply in times of strife as well as peace, when the courts are open and when they are not," n25 does not necessarily mean that the Constitution applies in the same way at all times. As Trevor Morrison has argued, "Civil War precedents may be a fruitful source of constitutional lessons for other emergency circumstances. In particular, they may help us see that national emergencies can warrant certain constitutional arrangements we would not otherwise tolerate." n26 So, although the Constitution applies at all times, in national security emergencies a shift occurs in the balance between national security and liberties.

In sum, Legalist positions agree that responses to emergencies should come from within the law, either through existing Constitutional norms or by the enactment of special emergency legislation. We will later see that Decisionist approaches critically disagree with both of these Legalist alternatives. Decisionists challenge Legalism by arguing that some emergencies cannot and should not be regulated by statutory or constitutional norms because they fall within the exceptional realm of executive decision-making.

B. No Executive Branch Supremacy in Emergencies

The Legalist position regarding balance of powers is that "[t]he constitutional text requires members of Congress, the President, and all other executive officials to pledge to uphold the Constitution. The duties thus generated do not depend on judicial enforcement." n27 And although much of the decision-making in emergencies is executed by government officials outside the courts, Legalists have also emphasized that courts must play a [*708] central role in interpreting the Constitution. n28 In other words, the Legalist position is that "legislative and executive branch fidelity to the Constitution includes, but is not limited to, complying with judicial determinations of unconstitutionality and, more generally, that the political branches should take some account of judge-made constitutional doctrine when construing the Constitution themselves." n29

Some Legalist approaches have prescribed robust judicial review of executive decision-making. For example, David Cole writes:

It is in times of crisis that constitutional rights and liberties are most needed, because the temptation to sacrifice them in the name of national security will be at its most acute. To government officials, civil rights and liberties often appear to be mere obstacles to effective protection of the national interest. . . . Judicial protection is also critical because crisis measures are typically targeted at the most vulnerable among us, especially noncitizens, who have little or no voice in the political process. n30

The protection of civil liberties in emergencies, according to Cole, should not be left in the hands of the political branches. Were courts to adopt the position that "extraconstitutional measures are appropriate during emergencies, and that the only real check is political, much would be lost and little gained in the protection of civil liberties." n31 Thus, although "courts are undoubtedly highly imperfect[,]" writes Cole, "the alternatives are worse. One cannot rely on the executive branch to police itself in times of crisis." n32

And while some Legalist approaches have prescribed robust judicial review in times of crisis, others have focused on legislative authorization of executive acts as the key to legitimacy. Geoffrey Stone, for example, has pointed out in the context of the Foreign Intelligence Surveillance Act (FISA) that "the proper way-the legal way, the constitutional way-for the President to address that question [of how to engage in more aggressive foreign surveillance than FISA permits] is for him to go to Congress and seek an amendment to FISA." n33 Likewise, Stone writes regarding the seizing and [*709] detaining of Jose Padilla at O'Hare airport in Chicago:

[I]f the President wanted the power to do this, if he thought that the circumstances facing the United States were so dire that he needed the authority secretly to seize American citizens . . . then he could have gone to Congress and said 'I want this power.' Congress could then have decided whether it was an appropriate power, and eventually the Court could have decided whether that power violated due process. n34

Others have also stressed the importance of the joint work of the political branches in emergencies, arguing that judges do and should defer when the political branches have worked in unison in emergency national security matters. For example, Samuel Issacharoff and Richard Pildes have argued that

[c]ourts have developed a process-based, institutionally oriented (as opposed to rights oriented) framework for examining the legality of governmental action in extreme security contexts. Through this process-based approach, American courts have sought to shift the responsibility for these difficult decisions away from themselves and toward the joint action of the most democratic branches of government. n35

Although the positions discussed above vary-especially in their emphasis on judicial review in times of crisis-what makes all of them Legalist for the purposes of this Article is that they all reject the Decisionist claims that certain emergencies must fall completely outside the "rule of law" and that the Legislature and the Judiciary must defer to the executive branch in emergencies.

III. U.S. Decisionism

In the years that followed the events of September 11, 2001, a [*710] Decisionist approach crystallized in U.S. emergency-powers debates. The two main jurisprudential premises of this approach are that: (1) emergencies cannot be governed by the rule of law; and (2) the primary decision-maker in emergencies is the executive branch. The main normative consequence of these two claims is that courts and legislators do and should defer to the executive branch in emergencies. This Part has three Sections. Section A introduces the source of these Decisionist premises: the German legal theorist Carl Schmitt. Sections B and C demonstrate how Schmitt's jurisprudential claims about emergency powers have reappeared in contemporary U.S. debates.

A. Background

The predecessor of U.S. Decisionism is the German legal scholar, Carl Schmitt, n36 who is often referred to as the father of twentieth-century legal Decisionism. n37 Schmitt was a law professor and a public-law theorist who wrote extensively in the years of the Weimar Republic (1918-1933) and thereafter. Various scholars have acknowledged the relevance of Carl Schmitt in contemporary emergency-powers debates. n38

What this Article adds to this discussion are the following two insights. First, we must distinguish between Carl Schmitt's jurisprudence and his politics. Schmitt, his current supporters, and many of his past and current opponents have, for the most part, conflated these two aspects of his thinking. Part VI will argue that this conflation of politics and jurisprudence has been a wise move for Schmitt and his current followers, and an unfortunate one for his opponents. Second, this Article claims that current Schmittians have conveniently dropped Schmitt's more controversial claims or those claims that would be unpopular in current U.S. legal- academic discourse. They claim to have stripped Schmitt of "layers of interpretive dross and continental conceptualisms," n39 and kept only his "important mid-sized and largely institutional or empirical insights." n40 Section C of this Part identifies one of these "continental conceptualisms"-Schmitt's definition of [*711] sovereignty-and argues that it cannot be easily "cleaned off" n41 of Schmitt's insights. n42

Schmitt contended that decisions are superior to norms. n43 He claimed that while "[e]very jurisprudential thought works with rules, as well as with decisions . . . only one of these can be the ultimate jurisprudentially formed notion from which all the others are always juristically derived: either norm . . . , or decision, or concrete order." n44 And for the Decisionist, Schmitt tells us, "[w]hat matters for the reality of legal life is who decides." n45 This is the core of Schmittian Decisionism. According to Schmitt, while the Legalist seeks the ideal of "substantive correctness," the Decisionist raises "the question of competence." n46 This means that the important question for the Decisionist is not what the correct legal answer is, but which political actor is best situated to decide how to act in any given situation. The key concepts here are decision, competence, and concrete situations.

One of the main justifications for the superiority of decisions over norms, under this view, is that "norms are valid only for normal situations, and the presupposed normalcy of a situation is the positive-legal component of its 'validity.'" n47 Schmitt insisted that "no norm can be valid in an entirely abnormal situation." n48 The norm, according to Schmitt, cannot address all situations, and when it attempts to do so, "[i]t becomes senseless and unconnected." n49 The norm controls the situation "only so far as the situation has not become completely abnormal." n50 Consequently, "[b]ecause a general norm, as represented by an ordinary legal prescription, can never encompass a total exception, the decision that a real exception exists cannot therefore be entirely derived from this norm." n51

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