The Magazine

Executive Action

The balancing of liberty and security in wartime.

Feb 1, 2010, Vol. 15, No. 19 • By JAY WEISER
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If anything, Posner/Vermeule suggest, after emergencies are safely over, a libertarian ratchet generates pious, guilt-ridden, untenable grants of civil liberties. And unfortunately, Attorney General Eric Holder shares the left’s ratchet fantasy: The attempted closure of Guantánamo was his initial foray into unreality. Now the Mohammed trial implies full constitutional rights for terrorists operating abroad and attacking on American soil. The possibilities are boundless. Miranda warnings before battlefield interrogations? A Fourth Amendment squadron that obtains warrants before Kabul car bomb searches? Eighth Amendment bans on drone attacks unless death penalty procedural requirements are followed? Will the courts allow any criminal prosecution where there was waterboarding?

Because both the authors and ratchet aficionados focus on the peak of emergencies, they underplay how the political environment affects the duration of an emergency. In unity governments cooperation continues even when frustrated voters hit presidents’ parties with major midterm election losses (Lincoln 1862, FDR 1942, Truman 1946). In partisan governments, with little goodwill going into the emergency, executive power is immediately contested and decays more rapidly (John Adams’s Quasi-War against France, Jefferson’s Embargo, Madison’s War of 1812, Woodrow Wilson’s Versailles Treaty). Some presidents change midstream: In the early Cold War Harry Truman consulted Republicans and used George Marshall’s name rather than his own for the Marshall Plan; but his highly partisan 1948 campaign (even painting the mild-mannered Thomas E. Dewey as a front man for fascists) led to a loss of support on China, Korea, and internal security.

The decay rate also depends on whose ox is gored. Support lasts longer when the targets are foreigners or anti-capitalist radicals (World War I, World War II, Cold War) as opposed to mainstream voters. John Adams wrecked his presidency with the Alien and Sedition Acts; in contrast, Lincoln cultivated War Democrats by limiting his anti-Copperhead sanctions to expulsions or brief imprisonment. With the civil rights era, things changed. After 9/11 U.S. Muslims, as a minority with limited political power and a small radicalized component, offered a tempting target to justify the expansion of executive power; but President Bush denounced those who wanted to demonize them. (Unfortunately, the libertarian ratchet went so far toward political correctness that Major Nidal Malik Hasan, an open Islamist, was able to earn an Army promotion before shooting over 40 people, killing 13.)

The longer the emergency, the greater the need to normalize the executive’s innovations. But this is not, as Posner/Vermeule suggest, primarily about Congress and the courts reining in the executive. There is a Constitution with teeth in emergencies—just not a written one. The emergency Constitution, like Britain’s, is based on custom, with a bipartisan war cabinet exercising substantial powers. The president is expected to obtain consent to major actions in advance from congressional leaders and key committee heads of both parties. When this is impossible, Congress expects a thorough briefing, the right to informal ratification, and an agreed course for the future. (Backdoor contacts with the courts are not unknown, either.) FDR’s first Inaugural Address, delivered after the banking system had collapsed, was a blunt statement of this unwritten Constitution: If Congress failed to rapidly pass his legislative program or its own, he said:

It may be that an unprecedented demand and need for undelayed action may call for temporary departure from that normal balance of public procedure. .  .  . [I]n the event that the national emergency is still critical .  .  . I shall ask the Congress for the one remaining instrument to meet the crisis—broad executive power to wage a war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe.

The disastrous National Industrial Relations Act, which authorized FDR to cartelize the economy, came close to an unlimited grant of executive power. But other Hundred Days legislation delegated more limited authority, and even at the peak of the crisis in 1933, with Republicans only a small congressional minority, the Republican senator Arthur Vandenberg was able to shove the FDIC down FDR’s throat, despite the president’s fears that deposit insurance would create moral hazard.

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