Opinio Juris has an interesting series of posts on Eric Posner and Adrian Vermeule's recent book Terror in the Balance, which makes a powerful case for the claim that Congress and the Courts should largely defer to presidential decisions in times of war and emergency. Posner and Vermeule argue that the president should get such deference because, on average, the executive has greater competence in making national security decisions than either Congress or the judiciary, and of course also has greater ability to act quickly and decisively. They also contend that, even when the executive goes wrong, there is - on average - little reason to expect that judges' or legislators' efforts to improve matters will make things better rather than worse. In this post, Posner makes the important point that decisions about the balance of power between the branches of government cannot be based on our evaluation of the performance of any one president (such as George W. Bush), but must instead be based on a broader evaluation of the strengths and weaknesses of the presidency as an institution.

Posner and Vermeule have made what is perhaps the strongest case so far for very broad executive power in wartime. Nonetheless, I have serious reservations about their argument, which I will develop in a followup post.