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Friday, July 22, 2011

Posner and Vermeule: Cynical about Law, Dewy-Eyed about Politics

Eric Posner's and Adrian Vermeule's op-ed piece in the New York Times, urging President Obama to raise the debt limit unilaterally, is just a specific application of their general theory, outlined in their book, The Executive Unbound: After the Madisonian Republic, that Presidents should be free of legalistic limits on their power to initiate policies. The basic message of the book is both positive and normative. On the positive side, Eric and Adrian retail Terry Moe's line (more recently pressed by William Howell) that Presidential power to make policy unilaterally is inevitable. The public wants Presidents to respond to crises quickly without waiting for Congress' imprimatur, and Presidents will accommodate this public desire, regardless of legalistic limits, because neither Congress (bogged down with collective action problems) nor courts (lacking information) will stop them. On the normative side, Eric and Adrian retail a kinder, gentler Carl Schmitt: We should not worry about Presidents' unilaterally claiming powers to (for instance) raise the debt limit, because they will be adequately cabined by politics. Presidents want to win re-election or a favorable place in history, so they will try to accommodate opposing views to signal to the public that they are not tyrants. The plebiscitory limit of regular presidential elections suffices to constrain Presidents: We do not need law to do so.

There is a lot one could say about this briskly written, energetically argued book, but one simple, blog-worthy point leaps out at me: Eric and Adrian are cynical tough guys in dismissing legal limits, but dewy-eyed and naive idealists when it comes to politics. They have a view of presidential politics that I have seen expressed elsewhere only on the more saccharine episodes of "West Wing" (the ones where Alan Alda, the reasonable conservative guy who would not take the Ethanol Pledge in Iowa, was running against Jimmy Smits, the macho but sensitive lefty). They proclaim that voters will be able to distinguish between phony and genuine signals of Presidential trustworthiness, because “[p]eople who seek the office [of the President] have strong incentives to discover and disclose negative information about those in office,” a task in which they are aided by “powerful institutions that are not part of the constitutional structure – most prominently, the media and political parties.” (Pages 115, 119). But this assessment of press and party strikes me as a tad optimistic coming from guys who believe that members of Congress cannot overcome their own collective action problems to stop an aggressive President.

Take, for instance, the press: There seems to be a lot of evidence that the press is the President's Little Helper (to use Jonathan Zaller's phrase). According to this "indexing" theory of reporting, reporters simply repeat -- "index" -- the press releases of the White House, ignoring rival stories offered by scientists and bureaucrats that (for instance) those aluminum tubes imported to Iraq had nothing to do with WMDs. (See Chapter 6 of William Howell's and John Pevehouse's book, While Dangers Gather: Congressional Checks on Presidential War Powers for exhaustive evidence of the "indexing" theory).

There are limits to the "indexing" theory of Presidential omnipotence over the press, but Eric's and Adrian's urging of a unilateral presidency might seem reasonably calculated to destroy those limits.


Howell, Pevehouse, and Douglas Kriner report, for instance, that, if members of Congress stand up to the President by holding hearings, issuing press releases, and generally making a fuss, then the press reports their opposition, and voters seem to listen. These political scientists do not explain why members of Congress can get public attention that others cannot attract.

Here's a theory of causation: Members of Congress are perceived by the public as being politically relevant actors without whose imprimatur the President cannot lawfully act. Eric and Adrian want to eliminate precisely that perception of Congress by pressing their "legal-authority-does-not-matter" theory. Why would reporters flock to the press conference of a senatorial committee chair whom the President could easily bypass with an executive order? Would not such a blowhard seem just as unnewsworthy as a member of, say, the House of Lords or the European Parliament?

It might be, in short, that constitutional structure has an effect on the behavior of the press. Destroy the structure that makes Congress the preeminent lawmaker, and you destroy the press coverage that members of Congress earn from their constitutional position.

Of course, my view that the power of the press might depend on a vigorous enforcement of separation of powers is just a theory. I have no evidence. Nor does Eric and Adrian cite any evidence about the intrepid press's carefully policing presidential missteps. Until there is more to support what I am inclined to view as their Norman Rockwell view of presidential politics, however, I am inclined to side with Madison over Carl Schmitt.

Posted by Rick Hills on July 22, 2011 at 11:50 PM | Permalink

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The normative changes over time; it's absurd to say otherwise. The Weimarization of American politics may make Posner and Vermeule's arguments relevant as description, but prescription is another matter.

Can we not find a more direct response to fascist logic than to criticize it as romance?

Posted by: Seth Edenbaum | Jul 23, 2011 6:58:28 PM

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