How Much Deference Should the President Get in Times of Crisis?

Opinio Juris has an interesting series of posts on Eric Posner and Adrian Vermeule's recent book Terror in the Balance, which makes a powerful case for the claim that Congress and the Courts should largely defer to presidential decisions in times of war and emergency. Posner and Vermeule argue that the president should get such deference because, on average, the executive has greater competence in making national security decisions than either Congress or the judiciary, and of course also has greater ability to act quickly and decisively. They also contend that, even when the executive goes wrong, there is - on average - little reason to expect that judges' or legislators' efforts to improve matters will make things better rather than worse. In this post, Posner makes the important point that decisions about the balance of power between the branches of government cannot be based on our evaluation of the performance of any one president (such as George W. Bush), but must instead be based on a broader evaluation of the strengths and weaknesses of the presidency as an institution.

Posner and Vermeule have made what is perhaps the strongest case so far for very broad executive power in wartime. Nonetheless, I have serious reservations about their argument, which I will develop in a followup post.

Tek Jansen:
I think that's fair in a time of crisis, which includes September 11-12 2001. If right now is a time of crisis, then WWI, the Depression, WWII, and the Cold War were also times of crisis. That leaves the 1920s and 1990s as peaceful times. We could get rid of the 1990s and call Gulf War I, Somalia, and Bosnia a "time of crisis."

So if Posner and Vermeule are arguing that the executive should have broad powers now, they are arguing that the executive should always have broad powers. That argument is legitimate but should not be couched in the "time of crisis" justification.
8.23.2007 8:39pm
bittern (mail):
Two words: Clinton. No, seriously, let's just break out the Constitution on the sunny days. I think TJ &company were dilettantes. Over their heads. Anyway, with W, which is where we are right now, it's a vicious circle.
8.23.2007 8:41pm
Dilan Esper (mail) (www):
I agree with the first two posters. In addition, I don't buy the argument that we shouldn't take our evaluation of the current President into account.

One of the most important arguments for civil liberties is that even if one trusts a particular President, one has to ensure that there are checks against other Presidents who can't be trusted. It's a familiar theme in the law-- an executive power version of Holmes' thesis that law is supposed to constrain the choices of the bad man (a good man, after all, does not need the sanctions imposed by the law to constrain his conduct).

Bush, therefore, to the extent he is seen as abusive (and I would invite conservatives to substitute Clinton or Carter or someone else they think abused power), is quite relevant to the discussion. As Lord Acton reminded us, power corrupts, and absolute power corrupts absolutely. By constraining the executive, even in wartime, we sacrifice some of the vaunted efficiency that might excite some, but what we get in return is the assurance that whoever we think of as a bad President, whether it is Bush or someone else, doesn't get to run roughshod over our human rights.
8.23.2007 8:54pm
byomtov (mail):
Posner writes,

As the founders understood (oops!), power not given to the presidency must be given to some other institution, and so, to stick within the framework of the federal government, the real question is whether we want to give power to the mediocre president, the mediocrities in Congress, the mediocre supreme court justices, or (I suppose) the mediocre heads of agencies. Or we could let the "people" handle the terrorists themselves.

This argument is not compelling.

To begin with, it assumes that all power must be given to some part of government. That is patently silly. Is it necessary to say that part of what the Constitution does, after all, is expressly deny certain powers to government? The "real question," to use Posner's phrase, or at least one important real question, is what powers we want to let the government have.

It is no answer to say that, as Posner does, that otherwise, "we could let the people handle the terrorists themselves." This is pure idiocy. No one is talking about taking away the ability to fight terrorism in general from the President. The issue is what powers are reasonable to grant. The arguments are about the tradeoffs involved. By stating the issue this way Posner tries to head off debate by asserting that limiting executive power prevents the President from combating terrorism.
8.23.2007 8:55pm
loki13 (mail):
So, the general argument goes:

1. We can't trust the current President with expanded executive power

2. But we should trust the Presidency in general with expanded executive power, because in general, it's better to trust the executive than the courts or the legislative branch.

3. Therefore, we should trust the current President wit expanded executive power.

Hmmm... how about this? You shouldn't trust Joe,because he's a thief and a murderer. But you should trust people in general, because that's a better way to live life, and you have to trust some people. Therefore, trust Joe.

Clear as an unmuddied lake.
8.23.2007 8:57pm
PGofHSM (mail) (www):
Or we could let the "people" handle the terrorists themselves.

Given Posner's skepticism toward the "people," can I fairly assume he doesn't believe the Second Amendment was meant to protect their individual right to arms? After all, many proponents of gun ownership and open carrying in all places have claimed that had a passenger or employee on the 9/11 planes been armed with a gun, the death toll would have been much lower. If the "people" never are expected to handle emergencies themselves, they can just resign their guns to the government.
8.23.2007 9:01pm
logical extremes:
I can think of no idea worse than giving a president more power oe deference during a time of crisis than in any other time, as it creates a tremendous incentive for any president to create a crisis. If he or she is to be cut some slack for an extremely brief time that is ok, but he or she should be roundly and thoroughly investigated and excoriated for allowing the crisis to develop.
8.23.2007 9:03pm
Frater Plotter:
Exactly what powers are we talking about? I think it's quite reasonable to extend to the executive certain crisis powers. For instance, an invasion of U.S. soil would be a crisis, and it's quite reasonable for the President to have the authority to commit U.S. troops to repel invaders; that is, to go to the borders and shoot people, an act that would be quite unreasonable in the absence of an invasion. However, this power is constitutional and quite uncontroversial.

What is really being asked is to extend unconstitutional powers to the executive: to permit the executive to come up with new powers for itself that have no basis in the Constitution, or indeed defy its strictures: powers to restrict freedom of speech and assembly; powers to commit torture and various other crimes; powers to violate protections against search and seizure; powers to imprison persons and hold them to involuntary servitude without due process of law.
8.23.2007 9:46pm
Doesn't history tell us that times of crisis are exactly when powergrabs by a nation's leadership are the most likely, and also the most damaging? Despots and tyrants typically gain their most virulent power during times of crisis when their constituents are most fervently looking to the government for leadership and assistance. That the leadership would use the crisis against its citizens is a hallmark of the slide into fascism, and in fact one of the traits of classical fascism (capital F, I suppose) is maintaining and prolonging a state of crisis (or at least the perception of one) in order to further their consolidation of power.

Seriously, it's exactly the wrong time to countenance these issues.
8.23.2007 9:49pm
Justin (mail):
"Doesn't history tell us that times of crisis are exactly when powergrabs by a nation's leadership are the most likely, and also the most damaging?"

That was my principle concern with Posner (I had quite a few with AV's often less than scintillating posts). He combines a pretty robust, unconservative view of power with a lack of empirical analysis. The results, as I mentioned, could be catastrophic. History, repeat, doomed, tragedy, comedy, etc.
8.23.2007 10:25pm
scote (mail):

How Much Deference Should the President Get in Times of Crisis?

What if the President creates the "Times of Crisis?" Then how much deference does he deserve?

Just as we can't give in to hostage takers because it will encourage more kidnappers in the future, we can't give in to the President's demands for deference in crisis of his own making as it will only encourage artificial crisis in the future (Pre-2004 Terror alerts anyone????)
8.23.2007 10:31pm
The Commander-in-Chief is clearly subordinate to Congress's Article I power to provide for the regulation of the military. Because the Presidency is coequal with the Congress, this tells us that CinC is really a separate job, whose only requirement is that the person holding it is also President.

It may be -- probably is -- sensible for Congress to defer to whoever is also President in the short term; but when he puts on the brass hat, he puts himself under Congress.
8.24.2007 11:56am
How much deference should the President be given? Exactly 60-90 days worth, as spelled out by the War Powers Act. How much more leeway does the President need in time of war when he already commands all of our military power?

Of course, one should also give some consideration as to the difference between a "Declaration of War" and an "Authorization of the Use of Force". Since the law makes a clear distinction between the two, it is clear that Congress intended for the two to be distinct ideas.

The current administration's position would be easier to justify if they had actually sought for-real Declarations against Afghanistan and Iraq. After all, we toppled two (fairly) legitimate (de facto if not de jure) foreign governments. Surely we should require a Declaration of War before engaging another State entity with the intent of regime change?
8.24.2007 11:43pm