The Inevitable Imperial Presidency

Harvey Mansfield reviews a new book by legal scholars Eric Posner and Adrian Vermeule:

According to Posner and Vermeule, we now live under an administrative state providing welfare and national security through a gradual accretion of power in executive agencies to the point of dominance. This has happened regardless of the separation of powers. The Constitution, they insist, no longer corresponds to “reality.” Congress has assumed a secondary role to the executive, and the Supreme Court is “a marginal player.” In all “constitutional showdowns,” as they put it, the powers that make and judge law have to defer to the power that administers the law.

Carl Schmitt enters as the one who best understood the inevitability of unchecked executive power in the modern administrative state. He saw that law, which always looks to the past, had lost out to the executive decree, which looks to resolve present crises and ignores or circumvents legal constraints.

The authors appear to believe that this accumulation of power is both desirable and unavoidable. (As an aside, this makes the likelihood of projects like Seasteading more probable, as the vested interests overestimate the resilience of the status quo and underestimate efforts to subvert it.) The one check on executive power they cite is public opinion. Now I haven’t read the book, but if they’re calling the US Gov the administrative state, then they ought to consider the bureaucratic apparatus constraining the power of POTUS–that is, the administers. Foseti made this point quite well:

The vast majority of the employees of the government, like me, are unelected and – for all intents and purposes – cannot be fired. Focusing on the 0.0001% of government employees that get elected (obviously!) misses the remaining 99.9999%. Virtually everyone thinks that it’s possible to “change” government while maintaining 99.9999% of its employees. This belief is obviously retarded.

Who is sovereign? Yes, the executive, but his power is circumscribed by an army of civil servants and mandarins.

Posner and Vermeule offer up Carl Schmitt as the explicator of the current constitution. It is odd that such mainstream legal theorists would chose a man who rationalized the Nazi grasp for power, but I applaud their honesty. Schmitt was famous for defining a sovereign as he who decides the exception. As the exception becomes the rule–and the old rule, the exception–the Constitution is remade. What you think the constitution is and what it actually is are not the same thing. Welcome to the present.