Deference to the Executive in the United States after September 11: Congress, the Courts, and the Office of Legal Counsel

By Posner, Eric A. | Harvard Journal of Law & Public Policy, Winter 2012 | Go to article overview

Deference to the Executive in the United States after September 11: Congress, the Courts, and the Office of Legal Counsel


Posner, Eric A., Harvard Journal of Law & Public Policy


According to the "deference thesis," legislatures, courts, and other government institutions should defer to the executive's policy decisions during national security emergencies. (1) In this Essay, I will address two criticisms of the deference thesis. The first argument, which has been developed most powerfully by Professor Stephen Holmes, is that rules dominate standards at moments of crisis. (2) An executive that is unconstrained, that is, not bound by rules, will make worse policy choices than an executive that is bound by rules. (3) This type of argument is usually made in the context of urging legislatures and courts to constrain the executive during emergencies. (4) Some commentators, however, doubt whether it is possible for legislatures and courts to constrain the executive during emergencies. (5) These doubts have led to a second argument that the executive should be bound by institutions within the executive branch such as (in the United States) the Office of Legal Counsel, (6) or through the construction of new institutions that review the executive branch's actions. (7) Both arguments criticize the deference thesis but propose different solutions. The first argument proposes that Congress and the judiciary give the executive less deference; the second proposes that officials within the executive branch give the President less deference. Thus, we can distinguish external constraints on the executive and internal constraints on the President.

Both arguments are flawed. The external constraints argument gets the normal analysis backwards: rules are better for routine, recurring situations. Although some emergencies are, in fact, routine, the type of emergency that calls for deference is not. The internal constraints argument, as normally presented, makes the fatal assumption that the President can be bound by his own agents against his own perceived interest, and relies on other questionable premises about the structure of government in the United States.

I. THE DEFERENCE THESIS

The deference thesis states that during emergencies the legislature and judiciary should defer to the executive. (8) It assumes that the executive is controlled by the President, but to the extent that the President could be bound by agents within the executive, the deference thesis also holds that those agents should follow the President's orders, not the other way around. In normal times, the three branches of government share power. For example, if the executive believes that a new, dangerous drug has become available, but possession of the drug is not yet illegal, the executive may not act on its own to detain and prosecute those who deal and use the drug. The legislature must first enact a statute that outlaws the drug. The executive also depends on the legislature for financial appropriations and other forms of support. The executive also faces constraints from the courts. If the executive arrests drug dealers and seeks to imprison them, it must first obtain the approval of courts. The courts ensure that the executive does not go beyond the bounds of the new law, does not violate earlier-enacted laws that have not been superseded by the new law, and does not violate the Constitution.

In emergencies, the executive often will contemplate actions that do not have clear legislative authority and might be constitutionally dubious. For example, after September 11, the U.S. government engaged in immigration sweeps, detained people without charges, used coercive interrogation, and engaged in warrantless wiretapping of American citizens. (9) Many, if not all, of these actions would have been considered violations of the law and the U.S. Constitution if they had been undertaken against normal criminal suspects the day before the attacks. After September 11, both the legislature and the courts gave the executive some deference. The legislature gave explicit authorities to the executive that it had initially lacked; (10) the courts did not block actions that they would have blocked during normal times. …

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