The Executive Unbound: After the Madisonian Republic

By Eric A. Posner; Adrian Vermeule | Go to book overview

CHAPTER 3
The Statutory Framework

If the constitutional framework of liberal legalism is too rickety to contain executive power, perhaps statutes can substitute new legal constraints. A principal hope of liberal legal theory is that the deficiencies of the constitutional framework can be patched up by framework statutes that will channel and constrain executive power. The executive comprises the president and (various types of) agencies, and liberal legalism tries to constrain both, through different statutes. As to the agencies, liberal legalists hope that general procedural statutes such as the Administrative Procedure Act (APA) can “translate” the principles and values underlying the separation of powers into a world in which agencies routinely hold consolidated powers of lawmaking, law-execution, and law-interpretation.1 As to the president, Congress has enacted many subject-specific framework statutes that attempt to constrain executive power, especially with regard to warmaking, foreign policy, and emergencies. And liberal legal theorists often propose new statutes of this sort—for example, a statute that would confine presidential emergency powers in the aftermath of a terrorist attack.2

These efforts all fall short of the aspirations of liberal legalism, in greater or lesser degree. The subject-specific framework statutes that attempt to constrain presidential power are the most conspicuous failure; most are dead letters. Seemingly more successful is the APA, which remains the central framework for the administrative state. We will suggest that this is something of an illusion; the greater specificity of the subject-specific statutes, and the greater plasticity and ambiguity of the APA, make the failure

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The Executive Unbound: After the Madisonian Republic
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • Introduction 3
  • Chapter 1 - The Constitutional Framework 18
  • Chapter 2 - Constitutional Change 62
  • Chapter 3 - The Statutory Framework 84
  • Chapter 4 - Constraints on the Executive 113
  • Chapter 5 - Global Liberal Legalism 154
  • Chapter 6 - Tyrannophobia 176
  • Conclusion 206
  • Acknowledgments 211
  • Notes 213
  • Index 243
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