As any history student knows, the Founding Fathers envisioned a president with strong executive power, but one also kept in check by Congress and the Supreme Court. In The Executive Unbound: After the Madisonian Republic, University of Chicago law professor Eric Posner and Harvard University law professor Adrian Vermeule contend that the presidency has become too powerful for the courts or lawmakers to restrain. Using the September 11 terrorist attacks and the 2008 financial crisis as examples, the authors argue that the courts are too slow and Congress is too divided to provide real oversight for the White House. Instead of those traditional checks, Posner and Vermeule say the main constraint on the president is now political—the fear his party will lose the next election. Posner recently spoke with U.S. News about the modern presidency and how it has affected the first two years of the Obama administration. Excerpts:
To what extent does the U.S. intervention in Libya support your book's thesis?
[It] certainly confirms our thesis that the executive is, in many significant respects, unconstrained. And this is particularly true about the conduct of foreign policy. It's always available to Congress to complain and try to get the president to consult Congress or to try to limit the president's power. But despite a few complaints, Congress [has] largely acquiesced in the Libya intervention.
Congress theoretically could put a stop to this. Do they have the will to do so?
I think it all does boil down to politics, and the American public doesn't really want Congress to make these decisions. And I think Congress knows this, which is why they don't try to stop the president from doing these sorts of things.
You also talk about fear of "tyrants." Why do you think that's so prevalent now?
People understand that the president has become an enormously powerful figure. On the one hand, when there's a problem, they turn to the president, or if there's a crisis, they blame the president. But on the other hand, there's a long tradition in this country, going back to the very beginning, of being skeptical about the president. That's a powerful part of our heritage and our traditions. There's a kind of cognitive dissonance. We don't really trust the executives, but the practical reality is, we have to because we believe that the executive can get things done. [And] it's become extremely common to accuse the president, whoever he is, regardless of the party, of being like Hitler, or like Stalin, or a dictator. This tends to distort political discussion.
Why didn't Obama accomplish more when his party controlled both houses of Congress?
From a historical standpoint, Obama accomplished a spectacular amount, whether you think what he did was good or bad. Most presidents, through four or eight years, might get one or two major statutes passed that reflect their agenda, and a lot of little things, and usually they'll make a name through foreign policy. But the Dodd-Frank statute, which addresses the banking system, and the healthcare statute are enormous pieces of legislation of great significance. Now, why didn't he do more? What the president has to worry about is the next election. And if he moves too far from the center of American politics, he'll be punished at the polls. And so the Democrats were punished in the congressional elections, and Obama must now be even more concerned with what will happen at the next presidential election. [Check out a roundup of political cartoons on President Obama.]
Republicans in the House want to block any new regulations Obama might consider. Can they?
They can't do it. Unless they have veto-proof majorities in both houses, that's not going to happen. They can harass [the White House] in very minor ways. Hearings are unpleasant, but they don't really matter.
Would a government shutdown either expand or contract the president's power?
The 1995 example suggests that the president holds all of the cards. Congress has, again, the formal power to appropriate, but when there's a confrontation between Congress and the president, the president has lots of political advantages. He's one person who can send one message and appear reasonable, whereas Congress is a bunch of people who can't really agree and squabble a lot.
How does increased partisanship affect the unbound executive?
Let me first express a little bit of skepticism about that. There is some evidence of increased partisanship, but I think people exaggerate it. People overlook all of the examples of bipartisan cooperation. But you know, let's suppose that there is more partisanship. I think that's probably a healthy thing, so as Congress loses power, the party system takes up the slack a little bit. And the executive, when he wants to do something that's very important to him and the public doesn't trust him, the best way that he can try to gain the confidence of the public is to make a bipartisan gesture.