Eric Posner Reviews New Book on Executive Power

Executive Decision
Eric Posner
The New Republic
March 29, 2010

Imagine that U.S. agents nab a terrorist who knows the location of a ticking nuclear bomb and receive authorization from the president to torture him. Torture violates the law. So what happens next? Many people think the answer is straightforward. The agents and the president would face trial, conviction, jail time. The law is the law, and applies to everyone.

But there is a tradition of liberal political thought that suggests otherwise. Many of the American founders, influenced by Locke, believed in executive prerogative—the doctrine that the president enjoys the power to do what he believes is necessary to protect the country from threats to its security. The Constitution gives lawmaking authority to Congress, but general laws passed during times of peace cannot anticipate all the contingencies that arise in an emergency, and Congress is ill-equipped to pass new laws after the emergency has begun. If the president does not have discretion to take emergency actions that lack legal authorization or even violate existing laws, he will not be able to protect the nation. But if the president does have discretion to take actions he believes are necessary during an emergency, what prevents him from crowning himself dictator?

Benjamin Kleinerman offers a way out of this dilemma. He argues that the president needs the discretionary power to disregard the law during emergencies, but also that actions taken pursuant to this power should not be regarded as within his legal power. The president may use his “extra-constitutional” authority to take such actions if they are necessary to protect the nation; the actions must be taken during “extraordinary” rather than ordinary times, and they must not reflect the president’s personal views about what is morally important or politically expedient. If the president does not satisfy these conditions, the public must pressure Congress to impeach him. If he does satisfy them, his actions undergo a kind of constitutional baptism that washes away the taint of illegality.

Eric Posner