How Much Deference Should the President Get in Times of Crisis?

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.

Systematic Shortcomings of Broad Executive Power in Times of Crisis:

In this post, I take to heart Eric Posner's admonition that the scope of executive power in wartime should be determined by the relative strengths and weaknesses of the presidency as an institution rather than by our evaluation of any one president. He is absolutely right that "the presidency is an institution that is occupied by a succession of persons, and the proper structure of this institution is independent of who happens to occupy it during a particular term." He is also right to emphasize that, although there have been many "mediocre" (or worse) presidents, this fact is balanced by the reality that there have also been many mediocre Supreme Court justices and members of Congress. Incompetence and mediocrity is rarely in short supply in any branch of government. I even agree with Posner's claim that the Bush administration has trampled on civil liberties far less than previous wartime administration's, such as Lincoln's, FDR's, and Lyndon Johnson's (a view also endorsed by prominent liberal civil liberties scholar Geoffrey Stone).

Nonetheless, Posner and coauthor Adrian Vermeule are wrong to draw from all this the conclusion that:

The case for giving emergency power to the president rather than Congress rests on the simple point that a multi-member body cannot act quickly, decisively, and secretly. Once we reject the assumption that the members of Congress are likely to be smarter than the president, I don't see how any other factor would play a role.

It is true that the executive can act more quickly, decisively, and secretly than Congress or the courts. It is not true that this is the only factor that matters, even in an emergency. The comparative executive advantages stressed by Posner and Vermeule are balanced by several comparative shortcomings. Relative to Congress and the courts, the executive is more likely to fall prey to irrational small-group decisionmaking, more likely to excessively restrict civil liberties, and more likely to fall prey to a short time horizon. Let's unpack these three flaws.

I. Irrational Small-Group Decisionmaking.

A great deal of social science literature shows that, other things equal - small, like-minded groups are more likely to fall prey to error than larger groups with more diverse perspectives. For a good summary of the evidence, see this book by Cass Sunstein. Relative to Congress, the executive is far more likely to fall into the hands of a small group of like-minded individuals. In most administrations, the key decisionmakers are the president himself and a small group of advisers most of whom tend to be adherents of the same party and ideology as he is. It is easy for such a group to fall prey to ideological "groupthink" or simply to persuade themselves that whatever is in their immediate political self-interest is also good for the country.

By contrast, Congress is a much larger and more ideologically diverse body than the executive. Even the members of the president's own party in Congress are likely to be a more diverse group than the top echelon of executive branch advisers. While there are undoubtedly some deluded ideologues in Congress, it is far more difficult for a small group of such people to seize control of the institution than it is for the same thing to happen with the presidency.

Even the Supreme Court, with only nine members, is less prone to this pathology than the executive. Because Supreme Court justices are appointed by different administrations and confirmed by different Senates over a long period of time, the composition of the Supreme Court at any given point in time is likely to be more diverse than that of the executive branch.

II. Incentives to Overrestrict Civil Liberties.

If the nation is hit by a terrorist attack or suffers a military defeat, the executive is far more likely to be blamed for not doing enough to prevent it than Congress or the Supreme Court. Most voters tend to assign the lion's share of responsibility for such setbacks to the president rather than to other branches of government. In principle, the executive is also likely to be blamed for excessive violations of civil liberties. However, in times of crisis, historical evidence strongly suggests that the average voter will care far about security against attack than about even quite flagrant civil liberties violations.

As a result, a politically rational president faced with possible tradeoffs between security liberty is likely to err in favor of former. It may well be politically rational for the president to sacrifice civil liberties for the sake of possible increases in security even in cases where the cost is very high and the benefits very small. This problem is not confined to the Bush administration. Indeed, as I noted in my last post, it was far worse under many previous wartime administrations. The most notorious example is FDR's order to intern the Japanese-Americans during World War II despite the near-total absence of evidence that they posed any real threat.

Congress and the courts are not immune to this pathology. But precisely because they are less likely to be blamed for any security setbacks, they have a comparative advantage in protecting civil liberties. I do not suggest that security should always be sacrificed for the sake of civil liberties. However, it is important that Congress and the courts serve as at least a partial check on presidential excesses in this field.

III. Short Time Horizons.

Presidents are subject to election every four years, and under the Twenty-Second Amemdment, cannot serve more than eight years. By contrast, Supreme Court justices serve for life (an average tenure of 26 years), and many congressional leaders also serve for many years. So to do many rank and file senators and congressmen. Even congressmen, who are up for reelection every two years, are rarely genuinely at risk of defeat this often, because most represent "safe" districts.

For this reason, presidents have much stronger incentives than either Congress or Supreme Court justices to sacrifice the longterm to short-run political expediency. This problem is particularly important during times of war or emergency, when opportunities to score short-term political points at the expense of the long run abound. The tendency to overrestrict civil liberties for the sake of minor or even nonexistent security gains is just one of many such temptations. As a partial (though by no means complete) solution to this problem, it is important that institutions with a relatively more longterm orientation serve as a check on those with a shorter time horizon.

Implications of Variation in Presidential Performance for the Debate Over Executive Power in Times of Crisis:

An important aspect of executive power in times of crisis is the large variation in presidential performance between different administrations. As I explained in my last post on this subject, the top echelon of the executive branch is usually controlled by just a small group of people - the president himself and a few trusted advisers. In addition to the points I made in that post, this reality has one more crucial implication: we can expect much greater variation in the quality of presidential performance than in that of other branches of government, especially Congress.

Basic statistical theory shows that, holding other variables constant, small samples are likely to vary more than large ones drawn from the same underlying distribution (group of people or things). Just by random chance, the former are likely to deviate far more from the mean and the median. For a technical explanation, see this discussion of the law of large numbers. In this case, the underlying distribution is, roughly speaking, prominent American politicians, and presidents are the small sample group, while members of Congress and justices of the Supreme Court are relatively larger samples (in the case of Congress, with its 535 members, much larger).

The downside of this is that it makes it far more likely that a given administration will display extremely poor performance than a given Congress. In the last 40 years alone, I would suggest that we have had at least three administrations with extremely poor performance due to incompetence at the top (Jimmy Carter, George W. Bush) or venality (Richard Nixon). Those who differ from me on the ideological spectrum will probably disagree with me on some of these cases. But few are likely to have a list of extremely poor presidents that is much shorter than mine.

The unusually high variation of presidential performance suggests that even if Eric Posner and Adrian Vermeule are right (as I believe they are) to argue that the executive is on average more competent to manage crises than Congress and the Supreme Court, it does not necessarily follow that the other branches of government should give broad deference to executive decisions. We also have to take into account the damage caused by those cases where executive decisionmaking is far worse than that of the other branches due to the fact that the administration in power is unusually incompetent, unusually venal, or both.

To be sure, the high variation in presidential performance suggests that we are also more likely to have an extraordinarily good president than an equally wonderful Congress or Supreme Court. As against Carter and George W. Bush, we can set George Washington, Abraham Lincoln, and a few others who managed crises extremely well. Ultimately, this aspect of the executive power debate comes down to a question of whether we have more to fear from extremely bad executives than hope from extremely good ones. As a libertarian, I definitely come down on the side of fear rather than hope when it comes to government power. In my judgment, a very bad president can do far more harm in a crisis than a very good president can do on the other side of the scale.

Moreover, even in a nondeferential system, an unusually competent executive will generally be able to build up sufficient political capital that Congress and the Supreme Court will be reluctant to challenge him too much in a crisis even if they retain the authority to do so. Thus, an unusually competent executive should be able to manage crises relatively well even if the other two branches retain considerable power to constrain him. On the other hand, such countervailing power can play a valuable role in limiting the damage done by an unusually bad president.