The Executive Unbound: After the Madisonian Republic

The Executive Unbound: After the Madisonian Republic

The Executive Unbound: After the Madisonian Republic

The Executive Unbound: After the Madisonian Republic


Ever since Arthur M. Schlesinger Jr. used "imperial presidency" as a book title, the term has become central to the debate about the balance of power in the U.S. government. Since the presidency of George W. Bush, when advocates of executive power such as Dick Cheney gained ascendancy, the argument has blazed hotter than ever. Many argue the Constitution itself is in grave danger. What is to be done?

The answer, according to legal scholars Eric Posner and Adrian Vermeule, is nothing. In The Executive Unbound, they provide a bracing challenge to conventional wisdom, arguing that a strong presidency is inevitable in the modern world. Most scholars, they note, object to today's level of executive power because it varies so dramatically from the vision of the framers of the Constitution. But Posner and Vermeule closely examine James Madison's writings, and find fault with his premises. Like an ideal market, they write, Madison's separation of powers has no central director, but it lacks the price system which gives an economy its structure; there is nothing in checks and balances that intrinsically generates order or promotes positive arrangements. In fact, the greater complexity of the modern world produces a concentration of power, particularly in the White House. The authors chart the rise of executive authority, noting that among strong presidents only Nixon has come in for severe criticism, leading to legislation which was designed to limit the presidency, yet which failed to do so. Political, cultural and social restraints, they argue, have been more effective in preventing dictatorship than any law. The executive-centered state tends to generate political checks that substitute for the legal checks of the Madisonian constitution.

Piety toward the founders and a historic fear of tyranny have been powerful forces in American political thinking. Posner and Vermeule confront them both in this startlingly original contribution.


In the administrative state, what if anything constrains the enormous power of the executive—including both the presidency and the administrative agencies? in mainstream Anglo-American legal theory, the answer to this question emerges from a tradition that we will call liberal legalism. Liberal legalism cannot be defined in a sentence; it is a complex of theoretical views and institutional commitments related by a family resemblance, including elements of philosophical and political liberalism, constitutionalism, and deliberative democracy. But the simplest version of liberal legal theory holds that representative legislatures govern and should govern, subject to constitutional constraints, while executive and judicial officials carry out the law. the basic answer that liberal legalism supplies, then, is that law does and should constrain the executive.

More complex and realistic versions of liberal legal theory attempt to modify this picture to account for the facts of the modern administrative state, in which massive delegation to the executive and frequent crises threaten to relegate legislatures and courts to the sidelines. the twin problems of delegation and emergencies drive a great deal of liberal legal theory, which struggles to find conceptual devices and institutional mechanisms that can square liberalism’s commitments, largely worked out by the end of the nineteenth century, with the accelerating development of administrative institutions in the twentieth and twenty-first. Liberal legalism is intensely anxious about executive power, and sometimes goes so far as to define tightly constrained executive power as an essential element of the rule of law.

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