At some point soon I will take up directly Eric Posner and Adrian Vermeule’s new book, The Executive Unbound, but in the meantime let me flag Harvey Mansfield’s polite but skeptical review in the New York Times Book Review. He is doubtful of several things – the use of Carl Schmitt, the framing of the Madisonian concern, and other matters integral to the book. Most interesting to me, however, was his gentle but unmistakeable rejection of the book’s ahistorical reliance upon a version of cost-benefit analysis:
My advice to the authors is, first, to toss out Schmitt from their construction; they don’t really believe (or know) him. Then they should reconsider whether formal institutions like the separation of powers in the Constitution are as insignificant as they say. True, the president manages his news conference to sustain his credibility, but reporters come to it because he is the president, not because he is a rational actor.
Posner and Vermeule belong to the school of legal realism, now dominant in law schools, which believes the law is always the consequence of some power greater than the law, in their case the rational calculation of benefit and cost. Like most economists, they can see no reason for resisting such calculations.
Yet Posner and Vermeule still claim to hold to the rule of law. They do not object to being called professors of law. Students listen to them and readers buy their books because they teach the law, not because they are professors of executive domination, servants of the administrative state. It seems that the rule of law cannot be sustained without the formality and the majesty of a system of law that people respect.
I’m not sure about that last point. It seems to me that a central claim of the book is that the rule of law just is the administrative state, understood to have a formal constitutional failure but sustained by informal mechanisms. Thus to be a law professor is to be a servant and an apologist for the administrative state; they see the nature of this role clearly, and it is people like me or Professor Mansfield who do not. If that is so, however, I quite agree with Professor Mansfield that the book isn’t really about Schmitt at all; indeed, least of all about Schmitt. Instead it is about what, in terminology of the radical critical journal Telos, would be described as the theory of the ‘Wholly Administered Society’.
(Update: I’m clipping some of my own conclusions from this post – I really need to present them as part of a longer piece of my own, not simply cut and paste them on here. Also, commenter asks what is meant here by “formal constitutional failure.” As Mansfield explains:)
According to Posner and Vermeule, we now live under an administrative state providing welfare and national security through a gradual accretion of power in executive agencies to the point of dominance. This has happened regardless of the separation of powers. The Constitution, they insist, no longer corresponds to “reality.” Congress has assumed a secondary role to the executive, and the Supreme Court is “a marginal player.” In all “constitutional showdowns,” as they put it, the powers that make and judge law have to defer to the power that administers the law ….
But as Posner and Vermeule develop their argument, Schmitt fades away, and is replaced by an incongruous reliance on the rational actors of game theory. The two authors mean to show that although the formal separation of powers no longer has effect, the president as a rational actor is still constrained through public opinion and politics; even a strong executive needs to appear bipartisan and to worry about popularity ratings. So there is no solid reason to fear executive tyranny, and we should feel free to enjoy the benefits of the administrative state.