My college alumni magazine is featuring an article entitled “Octopotus”
on the kind of reasoning in some jurisprudential circles that has
supported the “unitary executive.” The article is about the University
of Chicago Law School’s Professor Eric Posner, whose most recent book is
The Executive Unbound: After the Madisonian Republic,
co-authored with Harvard’s Adrian Vermeule. Posner and Vermeule would
appear to agree that when George W. Bush declared the US Constitution to
be just a piece of paper he was being candid and also acting in the
best interests of the American people. Posner unambiguously sees the
non-constitutional accumulation of presidential power as a good thing,
enabling rapid response to crises, and describes the Madisonian
separation of powers in government as a “historical relic.”
The article, written by one Jason Kelly of the magazine staff, is a strange amalgam of political correctness combined with a puff piece on Posner’s Straussian views, which I suspect most U of C alumni would find repugnant if they bother to read the article. Kelly cites “undocumented immigrants” at one point and refers to Posner’s support of executive power as a “common view” in legal circles. He accepts Posner’s lead in defining those who criticize the unitary executive as engaging in “irrational fear” that Posner labels “tyrannophobia,” which colors the discussion that follows. Kelly might equally have referred to critics of Posner as constitutionalists, which would result in a different perception.
Per Posner, legal restraints on the executive branch have been replaced by “political considerations,” by which he means “democratic” public approval, to constrain executive action. He explains that presidents operate in a bubble defined by their own popularity and what the public will accept “to maintain the credibility to govern” which he also refers to as “political legitimacy.” He expands on this by asserting that the “public values stronger federal regulation of national concerns” because the nation has evolved politically, no longer restrained by “rule of law,” into an “administrative state.” It is “a natural development, reflecting public opinion and the institutional advantages of the presidency.”
Read more: http://www.theamericanconservative.com/articles/defending-the-indefensible/
The article, written by one Jason Kelly of the magazine staff, is a strange amalgam of political correctness combined with a puff piece on Posner’s Straussian views, which I suspect most U of C alumni would find repugnant if they bother to read the article. Kelly cites “undocumented immigrants” at one point and refers to Posner’s support of executive power as a “common view” in legal circles. He accepts Posner’s lead in defining those who criticize the unitary executive as engaging in “irrational fear” that Posner labels “tyrannophobia,” which colors the discussion that follows. Kelly might equally have referred to critics of Posner as constitutionalists, which would result in a different perception.
Per Posner, legal restraints on the executive branch have been replaced by “political considerations,” by which he means “democratic” public approval, to constrain executive action. He explains that presidents operate in a bubble defined by their own popularity and what the public will accept “to maintain the credibility to govern” which he also refers to as “political legitimacy.” He expands on this by asserting that the “public values stronger federal regulation of national concerns” because the nation has evolved politically, no longer restrained by “rule of law,” into an “administrative state.” It is “a natural development, reflecting public opinion and the institutional advantages of the presidency.”
Read more: http://www.theamericanconservative.com/articles/defending-the-indefensible/
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