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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As the scope of the emergency and methods for dealing with it become clear, some emergency powers decay, but others get legislative authorization. After a partial economic recovery, the Supreme Court struck down the NRA in 1935, but FDR’s Second Hundred Days legislatively revived several cartelizing NRA policies: the Wagner Act for union organizing, the Hot Oil Act for oil prices, and the Robinson-Patman Act to protect small retailers from chain store competition. With our current financial crisis past the acute stage, Congress and the Obama administration are trying to codify risk-reduction regulations for too-big-to-fail institutions. The National Security Act normalized the permanent Cold War crisis by mandating confidential executive consultations on sensitive matters with congressional leaders, but not with the whole Congress. On waterboarding, this worked: The Bush administration scrupulously followed the NSA, briefing congressional leaders, who gave their blessing, despite (then-ranking Democratic House Intelligence Committee member) Nancy Pelosi’s recent attempts at revisionist history.

This messy process of consultation, informal consensus, and executive action bears no relationship to the minimalist Constitution-in-exile beloved of some conservative scholars; it’s the Constitution-locked-in-the-attic, the crazy aunt everybody knows is there but is too polite to talk about. During the 2008 financial meltdown Treasury Secretary Henry Paulson, Fed Chair Benjamin Bernanke, and then-New York Fed chief Timothy Geithner radically intervened in financial markets to the tune of hundreds of billions of dollars—and then, with almost no legal authority, effectively seized AIG. Neither Congress nor the courts emitted a peep at this Beltway Putinism. When, with world financial collapse imminent, Paulson asked for $700 billion in no-strings TARP money, Congress squawked, attached some conditions—and signed on the dotted line. Nancy Pelosi, by then House speaker, formally supported the legislation, but turned around and denounced the perfidious Republicans on the House floor.

This violated the unwritten Constitution, which demands that the deal receive its Brangelina moment, where the opposing parties bill and coo at each other, gaze adoringly at the baby drooling in the busted stroller as they sign the adoption papers, and swear that they love it for its beautiful soul.

The unwritten emergency Constitution runs on trust. The other branches refrain from exercising their legal powers only as long as Congress’s voice counts in policy decisions, and Congress and the courts trust what they are told. Posner, in his Law and Social Norms, has observed that a person’s compliance with social norms signals whether they are reliable to deal with—which also applies to the norms of the unwritten Constitution. When trust goes, the written Constitution’s checks and balances roar back, and the executive gets ensnared, to the national detriment. Although one line of conservative thought blames weak executive power for congressional overreach in the 1970s, the real cause was Lyndon Johnson and Richard Nixon’s destruction of executive credibility. In the real world, excessive claims for emergency executive power can undermine it.

Jay Weiser is associate professor of law at CUNY. 


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