BreakPoint

BreakPoint: Executive Unbound

Have we Americans ceded our liberties to what one new book calls “the administrative state”? Do you think government power over your life is increasing? Well, more is on the way, and a new movement of “elite” thinkers are all for it. The case is set out in a new book Executive Unbound, by historian Eric Posner and law professor Adrian Vermuele, who analyze the rise of what they call the “administrative state.” In their book, Posner and Vermuele argue that the separation of powers, which the Founders, especially James Madison, devised as a bulwark against tyranny has “eroded beyond recognition.” In its place, we have a dominant executive branch and a marginalized Congress and judiciary. Virtually every scholar, liberal and conservative, would agree with this assessment. The difference is that, instead of urging a “return to the Madisonian system” enshrined in the Constitution, Posner and Vermuele defend the administrative state and, if anything, urge that it be strengthened! That’s because they and other political elites believe that “only a powerful executive can address the economic and security challenges of modern times.” This movement toward an all-powerful executive is taking place just below the surface, and we’re seeing evidence of it in the current administration’s power grabs. An obvious example is the president’s recent declaration that the Defense of Marriage Act was unconstitutional, a judgment reserved, of course, for the judiciary. And there’s no doubt that executive agencies have an increasing say over how ordinary people live their lives. What the executive can’t achieve in Congress, it enforces through the administrative state, bypassing the will of the people. The erosion of liberty is unmistakable. It’s also not what the Founders, like Madison, intended. Madison believed that the separation of powers was necessary to preserve the rule of law. An all-powerful executive would become tyrannical, not because the president himself was a tyrant, but because with that much power, government can’t help but act in tyrannical ways. The anthropology behind the Founders’ view, like belief in the rule of law, is a legacy of Christianity, which taught the West a realistic understanding of human nature—that is, that man is a fallen creature. In a New York Times book review, Harvard Professor Harvey Mansfield points out that Posner and Vermuele believe the Constitution “no longer corresponds to reality,” and that we can all trust that the “president as a rational actor is still constrained through public opinion and politics . . . So there is no solid reason to fear executive tyranny.” But far from restraining the administrative state, public opinion in part has made it possible. Few people want to admit it, but Americans of all political stripes have what Mansfield calls a “love-hate relationship” with the administrative state. They love it when it makes them feel secure and hate it when it makes someone else feel secure. It brings to mind “The Inquisitor’s Tale” from The Brothers Karamazov. In it, the Grand Inquisitor tells Jesus that men don’t want to be free, as Jesus preached, they want to be safe. Meet that need and they’ll gladly give you power. I can only pray the American people are not about to sell their freedom for this mess of potentially tyrannical pottage. But be warned, friends: it’s gaining steam in law schools, among liberal scholars and in this Administration.  

FURTHER READING AND INFORMATION

Is the Imperial Presidency Inevitable? Harvey Mansfield | The New York Times | March 11, 2011 New Book by Vermeule and Posner: "The Executive Unbound: After the Madison Republic" Harvard Law School | February 28, 2011  

04/8/11