The Executive Unbound

The answer, according to legal scholars Eric Posner and Adrian Vermeule, is nothing. In The Executive Unbound, they provide a bracing challenge to conventional wisdom, arguing that a strong presidency is inevitable in the modern world.


Author: Eric A. Posner

Publisher: Oxford University Press

ISBN: 0199831750

Category: Law

Page: 256

View: 852

Ever since Arthur M. Schlesinger Jr. used "imperial presidency" as a book title, the term has become central to the debate about the balance of power in the U.S. government. Since the presidency of George W. Bush, when advocates of executive power such as Dick Cheney gained ascendancy, the argument has blazed hotter than ever. Many argue the Constitution itself is in grave danger. What is to be done? The answer, according to legal scholars Eric Posner and Adrian Vermeule, is nothing. In The Executive Unbound, they provide a bracing challenge to conventional wisdom, arguing that a strong presidency is inevitable in the modern world. Most scholars, they note, object to today's level of executive power because it varies so dramatically from the vision of the framers. But there is nothing in our system of checks and balances that intrinsically generates order or promotes positive arrangements. In fact, the greater complexity of the modern world produces a concentration of power, particularly in the White House. The authors chart the rise of executive authority straight through to the Obama presidency. Political, cultural and social restraints, they argue, have been more effective in preventing dictatorship than any law. The executive-centered state tends to generate political checks that substitute for the legal checks of the Madisonian constitution.

The Age of Deference

31 The two professors are Eric A. Posner of the University of Chicago Law School and Adrian Vermeule of Harvard Law School, who wrote The Executive Unbound: After the Madisonian Republic. In their book, they criticize a “tradition” they ...


Author: David Rudenstine

Publisher: Oxford University Press

ISBN: 9780199381500

Category: Law

Page: 240

View: 707

In October 1948-one year after the creation of the U.S. Air Force as a separate military branch-a B-29 Superfortress crashed on a test run, killing the plane's crew. The plane was constructed with poor materials, and the families of the dead sued the U.S. government for damages. In the case, the government claimed that releasing information relating to the crash would reveal important state secrets, and refused to hand over the requested documents. Judges at both the U.S. District Court level and Circuit level rejected the government's argument and ruled in favor of the families. However, in 1953, the Supreme Court reversed the lower courts' decisions and ruled that in the realm of national security, the executive branch had a right to withhold information from the public. Judicial deference to the executive on national security matters has increased ever since the issuance of that landmark decision. Today, the government's ability to invoke state secrets privileges goes unquestioned by a largely supine judicial branch. David Rudenstine's The Age of Deference traces the Court's role in the rise of judicial deference to executive power since the end of World War II. He shows how in case after case, going back to the Truman and Eisenhower presidencies, the Court has ceded authority in national security matters to the executive branch. Since 9/11, the executive faces even less oversight. According to Rudenstine, this has had a negative impact both on individual rights and on our ability to check executive authority when necessary. Judges are mindful of the limits of their competence in national security matters; this, combined with their insulation from political accountability, has caused them in matters as important as the nation's security to defer to the executive. Judges are also afraid of being responsible for a decision that puts the nation at risk and the consequences for the judiciary in the wake of such a decision. Nonetheless, The Age of Deference argues that as important as these considerations are in shaping a judicial disposition, the Supreme Court has leaned too far, too often, and for too long in the direction of abdication. There is a broad spectrum separating judicial abdication, at one end, from judicial usurpation, at the other, and The Age of Deference argues that the rule of law compels the court to re-define its perspective and the legal doctrines central to the Age.

A Theory of African Constitutionalism

Eric Posner and Adrian Vermeule, The Executive Unbound: After the Madisonian Republic (Oxford University Press 2011) 5–6. 9 András Sajó and Renáta Uitz, The Constitution of Freedom: An Introduction to Legal Constitutionalism (Oxford ...


Author: Berihun Adugna Gebeye

Publisher: Oxford University Press

ISBN: 9780192893925

Category: Law

Page: 273

View: 779

A Theory of African Constitutionalism asks and seeks to answer why we need a new theoretical framework for African constitutionalism and how this could offer us better theoretical and practical tools with which to understand, improve, and assess African constitutionalism on its own terms. By locating constitutional studies in Africa within the experiences, interactions, and contestations of power and governance beginning in precolonial times, the book presents the development and transformation of African constitutional systems across time and place, along with the attendant constitutional designs and practices ranging from the nature and operation of the African state to its vertical and horizontal government structures, to its constitutional rights regime. This title offers both a theoretically and comparatively rich, historically and contextually informed, and temporally and spatially extensive account of the nature, travails, and incremental successes of African constitutionalism with detailed case studies from Nigeria, Ethiopia, and South Africa. A Theory of African Constitutionalism provides scholars, policymakers, governments, and constitution builders in Africa and beyond with new insights for reimagining the purpose, substance, and scope of constitutions and constitutionalism.

University of Chicago Law Review Volume 79 Number 2 Spring 2012

Aziz Z. Huq† [cite as 79 U Chi LRev777(2012)] The Executive Unbound: After the Madisonian Republic Eric A. Posner and Adrian Vermeule. Oxford, 2010. Pp 3, 249. INTRODUCTION Consider a recent snapshot of our imperial presidency.


Author: University of Chicago Law Review

Publisher: Quid Pro Books

ISBN: 9781610279215

Category: Law

Page: 386

View: 729

A leading law review offers a quality eBook edition. This second issue of 2012 features articles and essays from internationally recognized legal scholars. Authors include Eric Biber, writing on variations in scientific disciplines, experts, and environmental law; Frederic Bloom and Christopher Serkin, on suing courts and takings of property; Myriam Gilles and Gary Friedman, on aggregating consumer litigation after the AT&T Mobility decision on class actions; and David Skeel, Jr., on the possibility of bankruptcy for several U.S. states. In addition, the issue includes book review essays by Aziz Huq, concerning the power and limits of the executive branch; and by Laura Nirider, Joshua Tepfer, and Steven Drizin, on convicting the innocent and false confessions. Finally, an extensive student contribution explores antitrust law, state immunity from suit, and state licensing boards. In the eBook edition, Tables of Contents are active, including those for individual articles; footnotes are fully linked and properly numbered; graphs and figures are reproduced legibly; URLs in footnotes are active; and proper eBook formatting is used.

A Politician Thinking

... Private Property and the Limits of American Constitutionalism: The Madisonian Framework and Its Legacy (Chicago, 1990); and Eric Posner and Adrian Vermeule, The Executive Unbound: After the Madisonian Republic (New York, 2010).


Author: Jack N. Rakove

Publisher: University of Oklahoma Press

ISBN: 9780806159591

Category: History

Page: 241

View: 140

James Madison presented his most celebrated and studied political ideas in his contributions to The Federalist, the essays that he, Alexander Hamilton, and John Jay wrote in 1787–1788 to secure ratification of the U.S. Constitution. As Jack N. Rakove shows in A Politician Thinking, however, those essays do not illustrate the full complexity and vigor of Madison’s thinking. In this book, Rakove pushes beyond what Madison thought to examine how he thought, showing that this founder’s political genius lay less in the content of his published writings than in the ways he turned his creative mind to solving real political problems. Rakove begins his analysis by examining how Madison drew upon his experiences as a member of the Continental Congress and as a Virginia legislator to develop his key ideas. Madison sought to derive lessons of history from his reading and his own experience, but he also thought about politics in terms of what we now recognize as game theory. After discussing Madison’s approach to the challenge of constitutional change, Rakove emphasizes his strikingly modern understanding of legislative deliberation, which he treated as the defining problem of republican government. Rakove also addresses Madison’s deliberation about ways to protect the rights of individuals and political minorities from the rule of “factious majorities.” The book closes by tracing how Madison developed strategies for maintaining long-term constitutional stability and adjusting to the new realities of governance under the Constitution. Engaging and accessible, A Politician Thinking offers new insight concerning a key constitutional thinker and the foundations of the American constitutional system. Having a more thorough understanding of how Madison solved the problems presented in the formation of that system, we better grasp a unique moment of political innovation.

Targeting Americans

Posner&AdrianVermeule, The Executive Unbound: After the Madisonian Republic (2010). however, “liberal legalism has proven unable to generate meaningful constraints 210 tArgeting AmericAns.


Author: H. Jefferson Powell

Publisher: Oxford University Press

ISBN: 9780190492854

Category: Law

Page: 176

View: 866

Targeting Americans: The Constitutionality of the U.S. Drone War focuses on the legal debate surrounding drone strikes, the use of which has expanded significantly under the Obama Presidency as part of the continuing war against terror. Despite the political salience of the legal questions raised by targeted killing, the author asserts that there has been remarkably little careful analysis of the fundamental legal question: the constitutionality of the policy. From a position of deep practical expertise in constitutional issues, Prof. Powell provides a dispassionate and balanced analysis of the issues posed by U.S. targeted killing policy, using the killing of Anwar al-Awlaki in September 2011 as a focus for discussion. While Powell concludes that the al-Awlaki strike was constitutional under 2001 legislation, he rejects the Obama administration's broader claims of authority for its drone policies. Furthermore, he argues, citizens acting as combatants in al-Qaeda and associated groups are not entitled to due process protections: by due process standards, the administration's procedures are legally inadequate. A fundamental theme of the book is that the conclusion that an action or policy is constitutional should not be confused with claims about its wisdom, morality, or legality under international norms. Part of the purpose of constitutional analysis is to draw attention to these other normative concerns and not, as is too often the case, to occlude them.

The Imperiled Presidency

Jenny S. Martinez, “Inherent Executive Power: A Comparative Perspective,” Yale Law Journal 115 (2006): 2510–11. ... Eric A. Posner and Adrian Vermeule, The Executive Unbound: After the Madisonian Republic (New York: Oxford University ...


Author: G. Calvin Mackenzie

Publisher: Rowman & Littlefield

ISBN: 9781442260757

Category: Political Science

Page: 229

View: 703

The Imperiled Presidency: Presidential Leadership in the 21st Century calls for a dramatic re-evaluation of the American president’s role within the separation of powers system. In contrast with claims by academics, pundits, media, and members of Congress, this provocative new book argues that the contemporary American presidency is too weak rather than too strong. Cal Mackenzie offers the contrarian argument that the real constitutional crisis in contemporary American politics is not the centralization and accumulation of power in the presidency, but rather that effective governance is imperiled by the diminished role of the presidency. The product of more than three years of research and writing and nearly four decades of the author’s teaching and writing about the American presidency, The Imperiled Presidency is the first book-length treatment of the weaknesses of the modern presidency, written to be accessible to undergraduates and interested citizens alike. It engages with a wide range of literature that relates to the presidency, including electoral politics, budgetary politics, administrative appointments, and the conduct of foreign affairs. It would be a useful complement to courses that rely primarily on a single textbook, as well as courses that are built around more specific readings from a range of books and articles.

Constitutional Democracy in Crisis

... The Executive Unbound: After the Madisonian Republic (New York: Oxford University Press, 2010). 2 Ibid., 2. 3 Schmitt was educated at the Humboldt University in Berlin. 67 5. Constitutional Failure Revisited.


Author: Mark A. Graber

Publisher: Oxford University Press

ISBN: 9780190888992

Category: Law

Page: 352

View: 949

Is the world facing a serious threat to the protection of constitutional democracy? There is a genuine debate about the meaning of the various political events that have, for many scholars and observers, generated a feeling of deep foreboding about our collective futures all over the world. Do these events represent simply the normal ebb and flow of political possibilities, or do they instead portend a more permanent move away from constitutional democracy that had been thought triumphant after the demise of the Soviet Union in 1989? Constitutional Democracy in Crisis? addresses these questions head-on: Are the forces weakening constitutional democracy around the world general or nation-specific? Why have some major democracies seemingly not experienced these problems? How can we as scholars and citizens think clearly about the ideas of "constitutional crisis" or "constitutional degeneration"? What are the impacts of forces such as globalization, immigration, income inequality, populism, nationalism, religious sectarianism? Bringing together leading scholars to engage critically with the crises facing constitutional democracies in the 21st century, these essays diagnose the causes of the present afflictions in regimes, regions, and across the globe, believing at this stage that diagnosis is of central importance - as Abraham Lincoln said in his "House Divided" speech, "If we could first know where we are, and whither we are tending, we could then better judge what to do, and how to do it."

Rule of Law

They argued that everyone should be aware that law cannot constrain the executive , contrary to liberal legalism hopes ... Eric A. Posner and Adrian Vermeule , The Executive Unbound : After the Madisonian Republic ( Oxford : Oxford ...


Author: Barbara Faedda

Publisher: Ronzani Editore

ISBN: 9791280382054

Category: Law

Page: 296

View: 110

Edited by Barbara Faedda Based on a division of powers and the supremacy of a constitution, the rule of law is not invulnerable, as was demonstrated in the violent attack against the U.S. Capitol on January 6, 2021. It can be used but also abused; it can be respected or exploited, exalted or undermined. It can even arouse skepticism, because it is not always effective against the realities of political life. In a world facing social division, polarization, poverty, climate change, and pandemics, it is crucial to understand the roles of those who manage, control, or are touched by the rule of law. This book’s primary goal is to showcase the variety of perspectives, cases, and methodologies of the people and institutions that bring a range of expertise to bear in many fields. The essays here – which encompass various geographic areas and social groups, as well as several historical periods – address racism, misinformation, human rights, the status of women, the treatment of indigenous peoples, the environment, and more. The rule of law is not merely a set of principles that guarantee a just society. It must be more than a tool in the hands of legal experts; it cannot be a concept out of the reach of ordinary people. It is essential that every citizen feel a clear responsibility to protect and promote the rule of law, to denounce inequalities and oppose imbalances of power, if the common goal is to enjoy freedom, democracy, and justice for all. Barbara Faedda is the executive director of the Italian Academy for Advanced Studies at Columbia University and adjunct associate professor in Columbia’s Department of Italian, where she teaches courses on contemporary Italy. Among her publications are the books Elite. Cultura italiana e statunitense tra Settecento e Novecento (Ronzani, 2020); From Da Ponte to the Casa Italiana: A Brief History of Italian Studies at Columbia (Columbia University Press, 2017); Present and Future Memory: Holocaust Studies at the Italian Academy, editor (Italian Academy Publications, 2016); and essays including “An Italian Perspective on the U.S.-Italy Relationship” (The White House Historical Association, 2016); “Neurolaw: come le neuroscienze potrebbero cambiare l’antropologia giuridica”; and “We are not racists, but we do not want immigrants.” In 2016 Dr. Faedda conceived the International Observatory for Cultural Heritage (IOCH), dedicated to all issues relating to the survival, protection, and conservation of cultural heritage. In 2019 she was appointed ambassador, permanent observer for the European Public Law Organization to the United Nations.

The American Supreme Court Sixth Edition

The principal defense of that notion is Steven G. Calabresi and Christopher S. Yoo, The Unitary Executive: Presidential ... in The Executive Unbound: After the Madisonian Republic (2011), argue that the Madisonian vision is in fact ...


Author: Robert G. McCloskey

Publisher: University of Chicago Press

ISBN: 9780226296920

Category: History

Page: 448

View: 858

For more than fifty years, Robert G. McCloskey’s classic work on the Supreme Court’s role in constructing the US Constitution has introduced generations of students to the workings of our nation’s highest court. As in prior editions, McCloskey’s original text remains unchanged. In his historical interpretation, he argues that the strength of the Court has always been its sensitivity to the changing political scene, as well as its reluctance to stray too far from the main currents of public sentiment. In this new edition, Sanford Levinson extends McCloskey’s magisterial treatment to address developments since the 2010 election, including the Supreme Court’s decisions regarding the Defense of Marriage Act, the Affordable Care Act, and gay marriage. The best and most concise account of the Supreme Court and its place in American politics, McCloskey's wonderfully readable book is an essential guide to the past, present, and future prospects of this institution.