Strange days


(Just to forestall boredom, frustration or angry clicks of the ‘back’ button: Much of what follows will be familiar to regular readers of this blog. I’ve gone over similar ground once more only to set up the next post, which will look at a recent and far more interesting paper by Posner and Vermeule.)

In 2003, Eric Posner (University of Chicago) and Adrian Vermeule (now at Harvard) published a paper in the Stanford Law Review called ‘Accommodating Emergencies’.

It examined what the authors described as the proper ‘degree of deference’ payable to the executive branch during unusual circumstances, such as civil war or severe economic downturn.

As the title suggested, Posner and Vermeule cast an affirmative eye on relaxation or suspension of the Constitution during an emergency, or arrogation of executive power such as had recently occurred on the pretext of fighting global terrorism.

They placed themselves in a tradition they identified with Alan Dershowitz, Richard Posner and William Rehnquist, for whom extending the ‘boundaries of the politically possible’ was sometimes to be welcomed:

During an emergency, it is important that power be concentrated. Power should move up from the states to the federal government, and, within the federal government, from the legislature and the judiciary to the executive.

Constitutional rights should be relaxed, so the executive can move forcefully against the threat.

If dissent weakens resolve, then dissent should be curtailed. If domestic security is at risk, then intrusive searches should be tolerated.

There is no reason to think that the constitutional rights and powers appropriate for an emergency are the same as those that prevail during times of normalcy.

They went on to reject the claim, being advanced by some at the time, that ‘emergencies work like a ratchet’, as follows:

With every emergency, constitutional protections are reduced, and after the emergency is over, enhancement of constitutional powers is either maintained or not fully eliminated, so that the executive ends up with more power after the emergency than it had before the emergency. With each successive emergency, the executive’s power is ratcheted up.

Against this notion, Posner and Vermeule argued that there was no secular trend towards entrenched executive power; rather there was a cyclical movement of privileges gained and reversed. Or (arguing in the alternative), if there were such an accretion, it could be explained by ‘long-term technological and demographic changes, not recurrent emergencies’.

In a subsequent working paper called ‘Tyrannophobia’, the same two authors upbraided the US public’s ‘excessive fear of tyranny’. This ‘irrational… unnecessary and costly’ trait could best be explained by ‘cognitive biases and other psychological phenomena’: in short, ‘the broader paranoid style’.

Eight years on, Posner and Vermeule’s affirmative stance remains. They have just published a book welcoming the ‘effective end of the Madisonian republic of separated powers’ in favour of a ‘presidential democracy… in which Congress and the courts have been reduced to marginal actors, who carp from the sidelines but for the most part end up deferring to executive power.’

Judged solely on their descriptive accuracy, the authors can’t be faulted.

As they recognize, ‘few liberal commentators argue anymore that the President is abusing executive power.’ Indeed, today it is to unlikely sources like John Yoo that one must turn for criticism of Obama’s brazen disregard for legal constraints in Libya (which the President dismissed on Wednesday as ‘all kinds of noise about process and congressional consultation and so forth’). Scarcer still is opposition to expansion of the statutorily-sanctioned wars in Afghanistan and Iraq to Pakistan, Yemen and Somalia.

Indeed, District Courts have ruled, in support of Justice Department submissions, that the President and his military and national-security advisors (foremost among them the Defence Secretary and CIA chief) are the sole qualified interpreters of the geographical scope and temporal extent of the armed hostilities authorized by Congress in September 2001. It is, they have agreed, ‘inappropriate for a court… to adjudicate ex ante the permissible scope of particular tactical decisions that the Executive may take’ against al-Qaeda ‘affiliate organizations’ and their alleged members.

Should the President wish to assassinate a person, no public explanation need be adduced, let alone due process be afforded:

There are many aspects of military and national security operations in which the government does not publicly disclose the criteria that guide its actions, but that hardly means that in all such operations the government acts “arbitrarily.”

The President has a constitutional duty to take care that the law is faithfully executed, and he and the other defendants here take that obligation very seriously, endeavoring at all points to comply with all applicable domestic and international laws. The laws themselves are not secret.

And apart from those laws, the alleged operations here [‘lethal action’ against a US citizen in Yemen] would be guided by fact-intensive military and intelligence determinations involving command and policy judgments in the context of highly context-specific diplomatic and logistical considerations.

Any effort to reduce those judgments to a set of “criteria” to be publicly announced in response to a judicial injunction and subsequently enforced would, for the reasons previously discussed, exceed the bounds of judicial authority.

To gradual retrenchment of Fifth, Sixth and Eighth Amendment rights (a rollback still more advanced in jurisdictions, such as Australia and its states, where these are not explicitly granted or specified), must be added the ongoing evisceration of Fourth Amendment protections.

Viewed broadly, it must be agreed that there now are fewer institutional or procedural constraints on executive power (whether judicial review of administrative action, or reliance on legislative consent or oversight).

Posner and Vermeule write of the ‘ever-diminishing institutional capacities’ of the legislative and judicial branches relative to those of the executive, which has accrued ‘sweeping statutory and constitutional powers’. But, they aver, this has only ‘strengthened informal political checks on presidential action. The result is a president who enjoys sweeping de jure authority, but who is constrained de facto by the reaction of a highly educated and politically involved elite, and by mass opinion.’

These ‘non-legal constraints’, as they describe them, are ‘amorphous and vague’, and Posner and Vermeule hardly bother to substantiate or specify them at all:

The modern economy, whose complexity creates the demand for [unchecked] administrative governance, also creates wealth, leisure, education and broad political information, all of which strengthen democracy and make a collapse into authoritarian rule nearly impossible… Every action is scrutinized, leaks from executive officials come in a torrent, journalists are professionally hostile, and potential abuses are quickly brought to light. The modern presidency is a fishbowl, in large part because the costs of acquiring political information have fallen steadily in the modern economy, and because a wealthy, educated and leisured population has the time to monitor presidential action… The administrative state has thus helped to create a wealthy, educated population and a super-educated elite whose members have the leisure and affluence to care about matters such as civil liberties, who are politically engaged to a fault, and who help to check executive abuses.

Quite how this nosy busybody public, shorn of institutional levers by which to act upon what it ‘care[s] about’, monitors and ‘[brings] to light’, is supposed to apply its iron shackles, is anyone’s guess. The opinion poll, perhaps? Periodic elections? Indeed, Posner and Vermeule describe a President ‘substantially constrained by the ambient force of mass public opinion and the implicit threat of political backlash…he is enslaved to the opinion polls.’

The figurative language betrays its remoteness from reality; the description cannot but provoke mirth. A populace, in the short-run constantly misinformed in the most blatant of ways, in the longer term kept ignorant and poorly educated, and allowed every few years to participate in voting rituals during which mass support is brigaded behind elite policy aims  and to the extent it is not is rendered basically meaningless and ineffectual  never forms anything but a weak and pliable external constraint on the activity of administrators, upper-level bureaucrats and ministers.

The Posner-Vermeule ‘electoral democracy’ argument is a flimsy piece of apologetics, and hard to square with the growing and explicit contempt for popular opinion and voting rights held by Federalist Society confrères such as Justice Scalia, leading to his approval for disenfranchisement and blatant vote rigging. (Thus, in December 2000, John Yoo wrote in the Wall Street Journal that ‘the people have no right to vote for president or even the Electoral College; that power is only delegated to them by the grace of the legislature. In appointing the electors itself, the legislature would be directly taking up its constitutional functions again.’)

But it does oddly resemble a current favourite theme of the left-liberal intelligentsia (journalists, academics, artists). Many of the latter are eager to criticize governmental misdeeds or arbitrary excercise of power (non-judicial detention of refugees, denial of basic rights like abortion etc.).

But the atrophied and weak non-executive organs of state cannot plausibly be blamed for this, and the critics are not willing to call the entire system into question by asking why, at this point in history, the executive branch is being given unchecked authority, and why it might try to divide the population along racial or gender lines. So everything is explained by the fearful obeisance of a political elite which, for electoral reasons, submits (‘panders’) to the wishes of a backwards, uncouth, racist populace.

Both positions, it’s clear, share contempt for broad masses of the population, and solidarity with higher echelons of the state elite.

As Posner and Vermeule make plain in their ‘Accommodating Emergencies’ paper, some of the recent changes to the distribution of power between government branches, and the withdrawal of long-standing checks and rights, are intended to facilitate Washington’s pursuit of its strategic objectives (i.e. the waging of aggressive war).

Others, more clearly, such as detention without trial, are designed to allow persecution of dissenters. This points to the more fundamental purpose, shared across most economically advanced countries: to re-shape the state to suit new circumstances, in which political stability rests on unprecedently narrow social foundations.

That unchecked rule by the executive means government on behalf of a tiny group of rentiers can be seen by the anti-democratic ‘changes of governance’ envisaged for the EU, suggested by European Central Bank chief Jean-Claude Trichet upon receiving the Karlspreis in Charlemagne’s palace at Aachen:

It is of paramount importance that [fiscal] adjustment occurs; that countries – governments and opposition – unite behind the effort; and that contributing countries survey with great care the implementation of the programme.

But if a country is still not delivering, I think all would agree that the second stage has to be different.

Would it go too far if we envisaged, at this second stage, giving euro area authorities a much deeper and authoritative say in the formation of the country’s economic policies if these go harmfully astray? A direct influence, well over and above the reinforced surveillance that is presently envisaged?

The rationale for this approach would be to find a balance between the independence of countries and the interdependence of their actions, especially in exceptional circumstances.

We can see before our eyes that membership of the EU, and even more so of EMU, introduces a new understanding in the way sovereignty is exerted. Interdependence means that countries de facto do not have complete internal authority. They can experience crises caused entirely by the unsound economic policies of others.

With a new concept of a second stage, we would change drastically the present governance based upon the dialectics of surveillance, recommendations and sanctions.

In the present concept, all the decisions remain in the hands of the country concerned, even if the recommendations are not applied, and even if this attitude triggers major difficulties for other member countries.

In the new concept, it would be not only possible, but in some cases compulsory, in a second stage for the European authorities –  namely the Council on the basis of a proposal by the Commission, in liaison with the ECB – to take themselves decisions applicable in the economy concerned.

One way this could be imagined is for European authorities to have the right to veto some national economic policy decisions. The remit could include in particular major fiscal spending items and elements essential for the country’s competitiveness.


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