Eric Posner and Adrian Vermeule's Terror in the Balance:

Opinio Juris is holding a very interesting online symposium about this new book.

Justin (mail):
Adrien Vermeule: "But no one has come up with a serious alternative to an institutionally dominant executive."

This has to be one of the most profoundly dishonest things I've heard recently. And I'm a lawyer.

I'm also intensely curious as to Vermeule's star power. I read his attack on Prakash and Alexander, and his response indicated not just disagreement with their ideas, but an unfortunate ability to even GRASP their ideas.
8.23.2007 12:04am
Justin (mail):
ability should be inability
8.23.2007 12:05am
Justin (mail):
Posner's forray into the debate is profoundly (small c, Kirkian) unconservative. And while there's nothing wrong with that (I'm probably more Kirkian conservative than most progressives, but I'm hardly conservative), it bothers me greatly that Posner's lack of risk-aversion is coupled with an almost explicit disinterest in empirics. The results could be catastrophic, and repeatedly so.
8.23.2007 12:14am
Justin (mail):
It's interesting that Vermuele would first criticize the Hamden decisions as not being sufficiently deferential, and then say this:

So my compound question to Marty and others is: could things have been different, in a realistic political sense rather than a logical sense? Can we identify an emergency in, say, the past century in which we can realistically imagine Congress or the courts being substantially less deferential than they actually were? Can we really imagine that the World War II Congress would not have ratified Roosevelt's internment order, or that the Supreme Court could have decided Ex Parte Quirin differently than it did?

Vermuele seems to lack substantial imagination. It's a debate whether those alternative realities would have had better or worse results, but to declare them unimaginable?

Sidenote: AV could really do well by reading Barbara Tuchman.
8.23.2007 12:21am
Justin (mail):
This seems like an interesting question by Posner: "No serious presidential candidate, Taft-like, campaigns on a platform of limited presidential powers because no such candidate could possibly win."

I wonder what the Conspirators think of that.

It is also curious that Posner and AV fail to address the elephants in the room: is such a platform DESIRABLE? And if so, how can we help influence the politic to make it POSSIBLE (this seems like a variant of the Dan Dresner v. Glenn Greenwald debate about the Very Serious People).

In any event, being dismissive doesn't seem to be the appropriate response - especially in an "academic" debate. Posner seems to use framing as a crutch - he wonders why academics, freed from political realities, should discuss some issues dangerous to his theory (deference to framers). Then he wonders why academics should discuss other issues, when political realities make them difficult to implement.
8.23.2007 12:26am
Justin (mail):
I will give Posner this. He does have a sense of humor:

On the second question, I can't think of any off the top of my head, but that is probably just due to my ignorance. But one can think of hypotheticals. An extreme example I suppose would be a full-scale invasion of Iraq, designed to weed out some suspected al Qaede elements and to convert Iraq into a model Muslim democracy, a beacon for the Muslim-Arab world, one that would help eliminate the roots of the extremist ideology that resulted in the first 9/11. Although judges could do nothing about this hypothetical Iraq invasion, it would probably not deserve deference from Congress.
8.23.2007 1:34am
Anderson (mail) (www):
Wow. Just looked over the posts, and I can't even take Posner and Vermeule seriously enough to criticize them. It's like reading Soviet law articles.

As Justin says, "executive competence" is the kind of thing that people ignorant of history might believe in.

What puzzles me is why the authors themselves believe they have any competence on the subject. Judges don't know anything, but law profs do?

The bottom line is that, in any genuine emergency situation, a competent but illegal response will be politically unassailable. (Look how difficult it's been to attack illegal, *in*competent responses to fake emergencies.) Outside such a situation, there's no reason to defer to the executive any more than in a typical war setting.
8.23.2007 12:26pm