The Executive Unbound: After the Madisonian Republic

256 Pages·2011·1.13 MB·English

by  Eric A. Posner

The Executive Unbound
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The Executive
Unbound
After the Madisonian Republic
Eric A. Posner
Adrian Vermeule

3
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Library of Congress Cataloging-in-Publication Data
Posner, Eric A.
Th e executive unbound : aft er the Madisonian republic / Eric A. Posner, Adrian Vermeule.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-19-976533-1 (hardcover : alk. paper) 1. Executive power—United States. I. Vermeule, Adrian. II. Title.
KF5050.P67 2011
342.73′06—dc22 2010023201

Printed in the United States of America

on acid-free paper
CONTENTS
Introduction 3
Chapter 1 : Th e Constitutional Framework 18
Chapter 2 : Constitutional Change 6 2
Chapter 3 : Th e Statutory Framework 8 4
Chapter 4 : Constraints on the Executive 1 13
Chapter 5 : Global Liberal Legalism 1 54
Chapter 6 : Tyrannophobia 1 76
Conclusion 206
Acknowledgments 211
Notes 213
Index 243
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The Executive Unbound
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Introduction
I
n the administrative state, what if anything constrains the enormous
power of the executive—including both the presidency and the admin-
istrative 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 defi ned in a sentence; it is a complex of theoret-
ical views and institutional commitments related by a family resemblance,
including elements of philosophical and political liberalism, constitution-
alism, 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 offi cials
carry out the law. Th e basic answer that liberal legalism supplies, then, is
that law does and should constrain the executive.
M ore complex and realistic versions of liberal legal theory att empt 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. Th e twin prob-
lems of delegation and emergencies drive a great deal of liberal legal theory,
which struggles to fi nd 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 adminis-
trative institutions in the twentieth and twenty-fi rst. Liberal legalism is
intensely anxious about executive power, and sometimes goes so far as to
defi ne tightly constrained executive power as an essential element of the
rule of law.