Archive for March 30th, 2011

Book Review: The Executive Unbound: After the Madisonian Republic by Eric A. Posner & Adrian Vermeule.

Eric A. Posner & Adrian Vermeule, The Executive Unbound: After the Madisonian Republic. (Oxford University Press 2010) (249 pages); $29.95 hardcover.

The Executive Unbound is the kind of provocative and timely book that keeps you thinking long after you’re finished reading.  I found myself relating all national news to the authors’ thesis that the executive branch is restrained by politics, not law.  Whether they agree or disagree with the authors’ conclusions, law professors and upper level law students will want to read this engaging book.  Academic law libraries should certainly have it.

The authors, Eric A. Posner and Adrian Vermeule, have written for years that the executive branch is and should be the dominant governing body in the modern administrative state.  This book works well as an extension of the authors’ previous articles.

Posner and Vermeule present their idea of executive dominance as a challenge to James Madison’s checks and balances and liberal legalism’s belief that legislatures govern by passing laws, and the executive merely carries out those laws.

The first three chapters argue that the law does not constrain the executive.  Posner and Vermeule, citing Carl Schmitt, a Weimar and Nazi jurist, conclude that the executive’s unique ability to handle a crisis shows why the executive is also the primary governing actor during normal times.  They also argue that supposedly constrictive statutes like the Administrative Procedure Act do not bind the executive because they contain a series of “black holes” and “grey holes.”  The black holes exist where the executive is exempt or there is no judicial review.  Grey holes exist where constraints on the executive are so flimsy that it is, in effect, a black hole.  The authors argue that these escape hatches exist and are necessary because, as Schmitt famously wrote, the “sovereign is he who decides on the exception.”

In the fourth chapter, the book shifts to discussing what does constrain the executive.  The authors argue that presidents cannot accomplish their goals without convincing the public that they are well-motivated.  Posner and Vermeule then describe how the president can signal his good intentions by taking actions that would be “more costly for ill-motivated actors than for well-motivated ones.”  For example, the president might appoint members the other party, showing that he cares more about the good of the nation than politics.  The authors conclude that credibility-building mechanisms emerged as a substitute for the separation of powers.

The last two chapters expand on the authors’ conclusion.  First, having refuted liberal legalism in the United States the authors attempt to refute global liberal legalism.  However, Posner and Vermeule do not defend their ideas very vigorously in this chapter and are careful to couch their conclusions with disclaimers about their lack of “space or expertise to test [a] hypothesis in a rigorous fashion. . .”  As a result, those scholars focused on foreign and international law will likely find this chapter lacking.

In the final chapter, the authors argue that Americans need not fear the unbound executive.  They state that “tyrannophobia” arises from the fallacy that a legally unconstrained executive is an entirely unconstrained executive.

Throughout the book, the authors use recent examples which makes the book more accessible and persuasive.  For example, the first chapter draws conclusions from the executive’s treatment of two recent crises, September 11, 2001 and the 2008 economic crisis.  On the other hand, Posner and Vermeule are equally effective at using examples from throughout United States history to show that the executive became more powerful over time.

As a whole, the authors’ arguments are tightly organized and well-supported.  Each chapter helps support the others but can stand alone as its own argument.  The book itself is also very well-organized.  The chapter titles are meaningful and the index is especially thorough.  There are also ample end notes, making this book a great starting point for research.

I highly recommend this book.  Just don’t be surprised if you start thinking about it while you watch the news.

Reviewed by Clare Gaynor Willis, Reference Librarian at the Albert E. Jenner Jr. Memorial Law Library, University of Illinois College of Law.

March 2011

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