Binding the Executive (by Law or by Politics)

Aziz Huq

What in practice limits executive branch discretion? In The Executive Unbound: After the Madisonian Republic, Eric Posner and Adrian Vermeule reject “liberal legalism,” which situates constraint in the power of law and legally constituted institutions such as Congress and the courts. In their view, it is political, not legal, mechanisms that cabin executive discretion on the ground. This review essay examines critically both parts of that positive thesis — the weakness of law and the force of politics — as a vehicle for reconsidering the operation of presidential discretion. The essay identifies a more subtle but fragile political economy of constraint: Legal and political mechanisms are not substitutes, but complementary elements of an increasingly threadbare dynamic of executive restraint. This reformulation also has troubling normative implications for evaluations of the current scope of executive discretion.