Author Archive | Eric Posner

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A comment to my reply post made me realize that I accidentally omitted the following paragraph in that post.

 A number of responses to my third post on executive primacy and domestic law argued that in fact in domestic affairs the executive is not unbound. These responses noted some recent examples where President Obama’s agenda was thwarted by Congress. However, we did not argue that Congress has no power at all, or that the president is an actual dictator! I mentioned, for example, that Congress defeated Obama’s attempt to secure a climate bill, which required Obama to (only incompletely) circumvent Congress using his regulatory powers. So is the glass half full or half empty? Answering this question raises a significant methodological problem: it is virtually impossible to tell when the president respects Congress’s authority out of sense of legal obligation, and when the president is in fact responding to the same political factors that motivate Congress to block his program—in other words, politics is the omitted variable. But history provides a useful perspective. There is a long-term trajectory, in this country and many other democracies, in the direction of executive primacy in domestic as well as foreign affairs, which one can identify only by comparing present to past. No one denies that the New Deal regulatory system gave presidents immense powers that did not exist prior to its creation, and that this system has only grown over the years. The financial regulation and health care laws are only the latest in a long series of delegations from Congress to the president, and they confirm that long-term trends have not been reversed in the Obama administration. We are talking about a continuous institutional development that reaches back almost a century and today is entrenched. It is time for legal thought to [...]

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Reply to Comments

 In this, my last post on The Executive Unbound, I had intended to respond to as many comments as I could, but it turns out that there is a single theme of many of the comments, and I will focus on it with apologies to others whom I neglect. Before I continue, let me thank Eugene for permitting me to guest-blog on my new book. (Let me also respond to commentators who believed that I was trying to criticize the Obama administration or defend the Bush administration or perhaps vice versa. That was not my intention: while my arguments have implications for evaluating both administrations, those implications are complex, and discussion of them is best left for another forum.)

 The most widespread reaction is that Vermeule and I misperceive the Constitution. The original document did not establish a system of executive primacy but a system of checks and balances where the legislature was first among equals. A system of executive primacy could be put into place only through constitutional amendment that complies with the procedures set out in Article V, and no such amendments exist. If our current political system no longer complies with the Constitution, then it needs to be reformed forthwith.

 At a minimum, if only to achieve descriptive clarity, we need to distinguish the original design and the actual operations of the political system as it currently exists. Scholars tend to use the word “constitution” to refer to both phenomena, no doubt with the British example in the back of their mind—no one doubts that the British constitution has “evolved” over the centuries, and so there is no debate about whether the current British constitution is different from the “original” version, if an original version can even be identified. In the United States, the theory of [...]

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The Imperial Presidency and Domestic Law

 In my previous two posts, I discussed the executive’s prerogatives with respect to foreign policy and military intervention—hot topics today. But until recently, the hot topic was the Obama administration’s aggressive domestic policy, which culminated in the Dodd-Frank Act and the health care law. Skeptics of the thesis of executive primacy could point to these two statutes as evidence that Congress is alive and kicking. It seems obvious that President Obama could not have reformed American financial regulation and health care law without the cooperation of Congress. So in what sense is the executive primary or “imperial”?

 The answer is that, for both statutes, (1) the Obama administration, not Congress, initiated the legislative process and set the contours of debate; (2) the Obama administration, not Congress, is the face of the laws and will be held responsible for their success or failure; and, most important, (3) the statutes delegated massive authority to the executive—hundreds of rule-making mandates—so that the vast majority of policymaking decisions will be made by executive branch officials over the coming years and decades.

 Add to this the Obama administration’s use of regulatory agencies to implement climate regulation, having failed to secure congressional support for a climate bill. Presidents always prefer congressional support if only for the political boost, but when they fail to obtain it, they can fall back on the immense regulatory powers they already enjoy. In this case, Obama can fall back on existing environmental statutes and his control of the EPA and other agencies that regulate industries that affect climate change—and obtain much but not all of what he wanted from Congress. Yet another example is Obama’s (and before him, Bush’s) reliance on existing regulatory authorities to resolve the financial crisis. The government poured hundreds of billions of dollars into the credit markets [...]

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Has Obama Taken the Imperial Presidency to a Greater Height than Bush?

In my last post, I quoted Andrew Sullivan’s provocative claim that “Obama has now taken [the imperial presidency] to a greater height than even Bush.” Could that claim be right? I assume that Sullivan means that not even Bush went to war without congressional authorization, whereas Obama has shown himself willing to do so, but what of signing statements, wiretapping, torture, secrecy, and the many other items in the long bill of particulars against Bush?

The answer is that from the standpoint of executive power Obama and Bush are not much different in the main, and it is hard to compare the details. Bush acted inconsistently with some statutes, and his underlings propounded aggressive theories of presidential power which the Obama administration has abandoned, but the practical significance of these differences is limited. Bush got the authorities he needed by demanding them from Congress, and Congress accommodated him with the Patriot Act, the Protect America Act, the Detainee Treatment Act, the Military Commissions Act, and two AUMFs. Thanks to Bush, Obama enjoys the legal authorities he needs to conduct the conflict with Al Qaida—and so, until our next crisis, we don’t know how Obama would have acted under similar circumstances. The Obama lawyers are certainly less inclined to bloviate than the Bush lawyers were but again where it counts—have Obama’s lawyers ever stopped him from going beyond the edge of legality?—we have little information and some reason for skepticism. Obama has vigorously expanded the drone program, taken the war into Pakistan, robustly defended his right to kill American citizens abroad, and opposed litigation that could expose secrets about the treatment of detainees. What is most interesting is that there is currently little comment on the left about Obama’s extensive uses of executive power. There are some outliers who were celebrated [...]

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Why Congress Played No Role in the Libya Intervention

 Congress’ reaction to President Obama’s decision to launch a military intervention in Libya has been supine even by Congress’ usual standards. Congress vigorously debated and refused to authorize President Clinton’s military intervention in Kosovo in 1999 (Clinton intervened anyway). Congress debated and authorized the attacks on Afghanistan in 2001 and Iraq in 2003. Yet Congress has been mostly silent about the intervention in Libya. Why?

 President Obama is following a long line of precedents in which the executive lanched a foreign war without congressional authorization. The president disavowed these precedents during his campaign; he may or may not attempt to distinguish his campaign statement by invoking the UN security council resolution authorizing the attack, as Truman did for Korea. But this legal wrangling is all superstructure. Congress is disabled in numerous ways from making practical contributions to a war effort. It cannot prevent the president from starting a war, and it is nearly impossible to halt an ongoing war. Wars, then, simply become an opportunity for members of Congress to stake their reputations as hawks or doves for the sake of future elections.

 The Libya intervention provides an instructive example of the disabilities hampering Congress. Events in Libya unfolded with extraordinary rapidity, while the proper American stance depended on numerous constantly changing factors—the security situation in Libya, the attitudes of neighboring states and their populations, and the positions of foreign powers such as the UK, France, China, and Russia. A major source of complexity is that these various attitudes and positions depended in part on what other people thought the United States would do. The rebels might hold out if they believed that the United States would intervene, and by holding out possibly prevail without American intervention. The UK and France might sound the tocsins of war only as long [...]

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I’m signing off from the Volokh Conspiracy so that I will have time to pursue other projects.  Thanks to Eugene for inviting me to blog with him, to the rest of the gang for putting up with me, and to readers for their frequently interesting and only occasionally uncharitable and very rarely egregious and defamatory comments.  Eugene has kindly offered to let me post from time to time but I have asked him to take down my name in the hope that it will eliminate the otherwise difficult-to-break (for me) psychological compulsion to maintain a stream or at least trickle of posts.  I leave you with some links to my recent academic work, which I had hoped to blog about but never found the time to do so.

Economic Foundations of the Law of the Sea (with Alan Sykes).  All in all, the Law of the Sea treaty seems reasonable, but conservative critics are right that the deep sea mining provisions are silly.  But don’t let the best be the enemy of the good, etc.

Against Feasibility Analysis (with Jonathan Masur).  A popular alternative to cost-benefit analysis does not withstand scrutiny.

ProCD v. Zeidenberg and Cognitive Overload in Contractual Bargaining.  Judge Easterbrook’s infamous opinion is a masterpiece of realist jurisprudence.

The Rights of Migrants: An Optimal Contract Framework (with Adam Cox).  Imagine that a country is like an employer, and a potential migrant is like a prospective employee.  Then you can exploit a great deal of economic wisdom on optimal contracting, for the purpose of understanding immigration law.  An unplowed field for aspiring scholars.

Here are some papers that I will soon post on SSRN.  If they interest you, keep an eye out for them over the next month:

What Do Federal District Judges Want?: An Analysis of Publications, [...]

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The Book: An Online Review at The New Republic

The Book is a new online venture founded by Leon Wieseltier, the longtime editor of the literary section of the New Republic.  The New Republic has always been the top place for book reviews in my opinion—less ideologically predictable than the New York Review of Books and the London Review of Books, less eccentric than TLS, and (vastly) more sophisticated than the Times Book Review.  I hope The Book carries on this tradition.  Here is its agenda, written by Isaac Chotiner, its executive editor.  I have a review in the first “issue” (?—what is the correct word here?)—on a political scientist’s defense of Justice Kennedy. [...]

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Further Limitations on Civil Liberties…

Many of us said during the days of the Bush administration that restrictions on civil liberties motivated by the conflict with Al Qaeda would be maintained during any subsequent administration, whether Democratic or Republican, as long as the terrorist threat remained.  This prediction has been amply confirmed.  The most recent example is the implementation of an explicit profiling program for airline passengers.  The ACLU aside, there has not been much criticism of this initiative.  (Maybe because some of the most prominent critics of the Bush administration’s counterterror policies are now members of the Obama administration.)

The persistence of policies across ideologically divided administrations is good evidence that those policies are now mainstream rather than partisan and ideological.  Of course, many people will continue to disagree with them, just as many people continue to object to a standing army and a central bank; but these people are now officially on the fringes.  There will also continue to be arguments about interrogation practices and the like, but a wide range of Bush administration policies—indefinite detention without charges, trials by military commission, the use of military force against suspected terrorists in foreign countries, secrecy privileges that undermine litigation against government officials responsible for terrorism policies, profiling on the basis of nationality, and much else—are now politically entrenched.

This development seriously weakens some common arguments heard over the last years.  The major theory was that Americans support unnecessary or unjustified limitations on their liberties because of “panic,” exploited by elected officials for political gain.  If this theory is correct, then it applies to the Obama administration, which is acting just like the Bush administration—not quite as aggressively on the margin, but almost so.  But the theory was never a very good one.  If “fear” or “panic” is to be given any meaning, then it [...]

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Does Obama have authority to order military strikes in Yemen?

(A possibility that seems to be on the table.)  Recall our friend, the AUMF:

the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Al Qaeda is the relevant organization here, and so U.S. presidents can (indefinitely?) take military action against Al Qaeda, regardless of the country in which Al Qaeda members are located.  Note that a military strike against Al Qaeda in Yemen would be an act of war against Yemen unless Yemen consented to it (and it might), even though the government of Yemen itself does not support Al Qaeda (as far as anyone can tell) and indeed has been cooperating with the United States in the “war” (or “law enforcement action” or whatever it is) against Al Qaeda.  But Yemen, because of its own internal conflicts and the weakness of its government, may not be willing to take as aggressive action as the U.S. government wants it to—just like in Pakistan, where a similar war between the United States and Al Qaeda is taking place with only the quasi-consent of the Pakistani government.

But there is a further complication.  The relevant Al Qaeda in Yemen is called “Al Qaeda in the Arabian Peninsula.”  Is Al Qaeda in the Arabian Peninsula a branch of Al Qaeda, the organization that planned and executed the 9/11 attack and is therefore covered by the AUMF?  There are apparently contacts between the two Al Qaedas, but does that make them the same organization, or just two separate organizations that have—contacts?  What if [...]

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Our Glorious TSA

Once you eliminate the implausible corner solutions—the TSA undertakes body cavity searches of every passenger, or security screenings are abolished—a number of consequences follow.

1.  The TSA must randomize (play a “mixed strategy,” in game-theoretic parlance).  Otherwise, terrorists can predict some of its precautions and evade them.  The same principle explains why police vary patrol routes and road blocks.  A NYT article today makes clear that the TSA is self-consciously randomizing to keep terrorists off guard.

2.  At the social optimum, the number of successful terrorist attacks will be greater than zero.  It might be argued that we have had too few successful terrorist attacks over the last few years rather than too many.  The question is whether the implicit statistical valuation of life in TSA programs is too high.  I suspect that the answer is yes, as is generally the case with airline safety.

3.  Profiling is an effective strategy when, as here, terrorists come from a small group of (relatively) easily identifiable people.  One suspects that this explains Israel’s success.  But profiling places a large portion of the cost of deterrence on a small group, which makes some people morally uneasy.

4.  Once the implausible corner-solutions are ruled out, any security policy or threshold will seem arbitrary because you have to draw the line somewhere, which means that it will be easy to point to some permitted activity that is only slightly different from what is forbidden (for example, carrying on 100 ml of liquid rather than 101 ml).

5.  As for the “security theater” claim–

a.  If ordinary people are fooled into thinking that the TSA is doing more than it is really doing, then at least some potential terrorists will be fooled as well, and so will be deterred from engaging in airplane-terrorism.

b.  Ordinary people [...]

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China’s Victory at Copenhagen

This piece by Mark Lynas is well worth reading.

To those who would blame Obama and rich countries in general, know this: it was China’s representative who insisted that industrialised country targets, previously agreed as an 80% cut by 2050, be taken out of the deal. “Why can’t we even mention our own targets?” demanded a furious Angela Merkel. Australia’s prime minister, Kevin Rudd, was annoyed enough to bang his microphone. Brazil’s representative too pointed out the illogicality of China’s position. Why should rich countries not announce even this unilateral cut? The Chinese delegate said no, and I watched, aghast, as Merkel threw up her hands in despair and conceded the point. Now we know why – because China bet, correctly, that Obama would get the blame for the Copenhagen accord’s lack of ambition.

China, backed at times by India, then proceeded to take out all the numbers that mattered. A 2020 peaking year in global emissions, essential to restrain temperatures to 2C, was removed and replaced by woolly language suggesting that emissions should peak “as soon as possible”. The long-term target, of global 50% cuts by 2050, was also excised. No one else, perhaps with the exceptions of India and Saudi Arabia, wanted this to happen. I am certain that had the Chinese not been in the room, we would have left Copenhagen with a deal that had environmentalists popping champagne corks popping in every corner of the world.

…Except that China, the largest emitter, would not have been part of the deal.  Lynas does not mention that China’s proposal to reduce its carbon intensity by 40-45 percent by 2020 from the 2005 level would have done nothing more than endorse its business-as-usual emissions.  You might have noticed that other countries spoke in terms of cuts in carbon emissions [...]

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Entrenchment Provisions in the Health Care Bill

Jonathan notes that the health care bill includes certain “entrenchment” provisions, and asks, “can the current Senate bind future Senates in this way?”  If I understand the bill correctly, it creates an independent board that recommends ways to limit Medicare payments.  These recommendations go to the president, who in turn is supposed to submit them to Congress.  Congressional procedures are likewise constrained.  The Senate, for example, cannot debate the proposal for more than 30 hours; there are limits on House procedures as well.  The idea seems to be to constrain filibustering and other parliamentary maneuvers that would defeat cost-saving legislation in the future.  As Jonathan notes, the bill further provides that these constraints cannot be overturned by majority rule but require a 2/3 supermajority.

Can Congress bind itself in this way?  As it happens, I have written a paper on this topic (with Adrian Vermeule).  The short answer is “no,” or at least, no one thinks that Congress can bind itself in this way.  (For some Supreme Court dicta, see U.S. v. Winstar, 518 U.S. 839, 872 (1996)).  A Congress at time 1 can pass all the entrenchment provisions it wants, but Congress at time 2 can repeal them by majority rule, rendering the entrenchment provision nugatory ex ante.

Academics have spent a lot of time justifying the restriction on entrenchment, but, our paper argues, have failed.  Some scholars make conceptual arguments: Congress can’t bind future Congresses to supermajority rules if every Congress rules by majority.  But these conceptual arguments are clearly wrong, as Article V of the Constitution shows (and, indeed, the Senate’s own internally enforced supermajority rules).  It is certainly possible to entrench policy; the question is whether courts or other relevant agents will respect the rules.  Most scholars seem to fear that if Congress can entrench [...]

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The Climate Coalition of the Willing

The most tangible outcome of the climate agreement announced here Friday turned out to be cash….

But money in notable quantities should, in principle, start flowing next year….

The accord calls for the establishment of the Copenhagen Green Climate Fund to support immediate action to help curb emissions and to help communities adapt to the effects of global warming.

An initial, fast-start fund worth $10 billion annually would operate from 2010 to 2012.

For long-term finance, developed countries agreed to support a goal of jointly mobilizing $100 billion a year by 2020 to address the needs of developing countries.

So says the NYT.  It is hard to know where these figures come from.  The Copenhagen Accord itself does not give figures.  Various heads of state, including President Obama, bandied around the $100 billion figure, but Obama did not say what America’s contribution would be, and he made it clear that he expected other countries to make up the difference, which they might or might not do.

Let’s suppose this money comes through.  What is it for?  One reads the press reports on the Copenhagen meeting in vain for this information; nor do any of the official documents I have seen shed any light on this issue.  Consider the following possibilities:

1.  The money will go to the countries that experience the worst climate-related harm.

2.  The money will go to the poorest countries.

3.  The money will go to the poorest countries that experience the worst climate-related harm.

4.  The money will finance green energy infrastructure in developing countries.

Each of these possibilities draws on different ideas of justice and pragmatism.  The first rests on an idea of corrective justice—those who cause climate change should compensate those who are injured by it.  The second reflects distributive justice, but note [...]

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The Copenhagen Debacle, II

The original goal of Copenhagen was a 192-country treaty that committed all nations to reduce carbon emissions.  The much-scaled down goal that emerged in the weeks before the delegates arrived was a “political agreement” (not a treaty) that expressed a global consensus on the importance of reducing emissions.  What we finally got was a political agreement signed by a handful of countries—as far as I can tell from the press reports, only the United States, China, India, South Africa, Brazil, and a “group of European nations.”  The other 180-odd countries refused to sign the Accord, instead merely “taking note” of it in the final Copenhagen document.  The Accord did no more than reiterate that climate change is a problem and nations should do something about it.  The White House has declared victory, or success, or validation, or some such thing; if that is so, what is failure?

As I noted in a previous post, one lesson of the debacle was the impossibility of global governance understood in the conventional sense to mean that all countries have some say in the development of international law.  In a recent book, I speculated about this possible effect of the fragmentation of nations—the number of countries have approximately tripled since World War II.  More nations, I argued, imply less international law, at least, of the sort that can solve global-scale public goods problems.  Copenhagen illustrates the dilemma—you can have climate mitigation or you can have global governance; you can’t have both. [...]

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The Copenhagen Debacle

The agreement-to-agree did three things.  It established that a critical mass of developed and highly industrialized developing countries such as China agree that climate change is a significant problem, and that these countries need to reduce their emissions.  It provided that countries will have to submit to a monitoring system.  And it suggested that rich countries will have to make a payoff of some sort to poor countries.  But it did not produce agreement on particular targets or amounts, let alone a treaty.  Indeed, most of the world did not [corrected, 12/20] even formally sign onto the Copenhagen Accord, which contains these quasi-commitments.  You can read the Copenhagen Accord here.

Why the failure?  Here are some hypotheses:

1.  We are far from global democracy: the only workable agreement is one that a small number of states, fewer than twenty probably, can negotiate.  As the number of negotiators increases, the potential for holdout, bickering, and other transaction costs increases exponentially.  After much wasted time, the major emitters appear to have agreed to go forward on their own, over the next months and years.  It is fortunate that fewer than 20 countries account for nearly all carbon emissions, but this probably won’t be true farther in the future, which is an extremely serious problem.

2.  The rich countries took too seriously the demands of the poor countries.  The poor countries have always demanded money from rich countries—the “climate debt” is just the latest rationale.  But the legacy-of-imperialism and globalization-causes-poverty arguments failed to move the rich countries, and the climate debt argument won’t as well.  It is, first of all, a not very good argument, for reasons I have discussed elsewhere.  Beyond that, the rich countries know that their citizens will not countenance a climate pact that requires the transfers of [...]

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