Law Matters, Even to the Executive
Mortenson, Julian Davis, Michigan Law Review
LAW MATTERS, EVEN TO THE EXECUTIVE
Power and Constraint: The Accountable Presidency After 9/11. By Jack Goldsmith. New York: W.W. Norton & Co. 2012. Pp. xvi, 252. $26.95.
The Executive Unbound: After the Madisonian Republic. By Eric A. Posner and Adrian Vermeule. New York: Oxford University Press. 2011. Pp. 210. $29.95.
In both constitutional and international law, many legal rules cannot be implemented without what most people would describe as the voluntary compliance of their target. Is that really "law"? Or is rule compliance in such circumstances just an expression of "interests"? Forget jurisprudence for the moment. As a practical matter, what does it mean to work as a lawyer in a field where the rules are not coercively enforced against private parties by an independent judiciary whose orders are implemented by a cooperative exec- utive? This question has particularly high stakes for national security policy, where we find judicial deference at its highest, the centralization of modern government at its most pronounced, delegations of authority to the execu- tive at their broadest, and contempt for idealism at its most self-satisfied.
Two recent books on executive power prompt this return to such well- trodden ground. In The Executive Unbound: After the Madisonian Republic, Eric Posner1 and Adrian Vermeule2 claim that the constitutional rule-of-law apparatus is basically worthless. In Power and Constraint: The Accountable Presidency After 9/11, Jack Goldsmith3 says just about the opposite. This Re- view argues that Goldsmith is right and supplements his account by identi- fying a key mechanism in the political economy he describes. The Review begins by separating the various threads of argument advanced by Posner and Vermeule to expose how implausible their conceptual claims will seem to most lawyers. It then explores how their (largely unsupported) descriptive claims are contradicted by Goldsmith's empirical account as well as by other evidence adduced here. The Review closes by suggesting that one of the most plausible causal mechanisms for the efficacy of law-the deep vein of respect for legality that characterizes our culture-is itself a primary target of Pos- ner and Vermeule's project.
Posner and Vermeule make three kinds of arguments. First, they make a theoretical claim about the necessary conceptual vacuity of legal rules that apply to the executive. Leaning heavily on Carl Schmitt, they argue that law itself-certainly the actual laws applicable to executive action in the Ameri- can system, but perhaps even law in general-is an elaborate shell game with no interpretive constraint beyond what the decider decides. The second claim is empirical: regardless of whether law contains interpretive limits con- ceptually, the only thing that in fact constrains the American presidency is politics, construed narrowly as competition between self-interested electoral constituencies. On this model, law is a smokescreen for brute policy clashes between political enemies, and presidential behavior changes only as a func- tion of evolving majoritarian political preferences. The third claim is a pre- diction about the federal separation of powers: while modern governance cannot help but evolve into radical executive-centricity, we shouldn't worry about it because tyrannical policies are unlikely to result.
These claims are individually wrong and collectively dangerous. The first-that law does not impose genuine interpretive constraints-is simply implausible. Virtually any legal norm leaves room for interpretation, and virtually any legal rule has boundaries beyond which its application is un- certain. But that doesn't mean that law as such contains no meaningful in- terpretive limits. Posner and Vermeule's inapposite rejoinder that the president "can" ignore the law in secret is no different from the fact that I "can" run a stop sign or throw a rock through a stranger's window at night. …