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Every action is scrutinized, leaks from executive officials come in a torrent, journalists are professionally hostile, and potential abuses are quickly brought to light.The modern presidency is a fishbowl, in large part because the costs of acquiring political information have fallen steadily in the modern economy, and because a wealthy, educated and leisured population has the time to monitor presidential action…Constitutional rights should be relaxed, so the executive can move forcefully against the threat.If dissent weakens resolve, then dissent should be curtailed.Many of the latter are eager to criticize governmental misdeeds or arbitrary excercise of power (non-judicial detention of refugees, denial of basic rights like abortion etc.).But the atrophied and weak non-executive organs of state cannot plausibly be blamed for this, and the critics are not willing to call the entire system into question by asking why, at this point in history, the executive branch is being given unchecked authority, and why it might try to divide the population along racial or gender lines.In a subsequent working paper called ‘Tyrannophobia’, the same two authors upbraided the US public’s ‘excessive fear of tyranny’. unnecessary and costly’ trait could best be explained by ‘cognitive biases and other psychological phenomena’: in short, ‘the broader paranoid style’.

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Should the President wish to assassinate a person, no public explanation need be adduced, let alone due process be afforded: There are many aspects of military and national security operations in which the government does not publicly disclose the criteria that guide its actions, but that hardly means that in all such operations the government acts “arbitrarily.” The President has a constitutional duty to take care that the law is faithfully executed, and he and the other defendants here take that obligation very seriously, endeavoring at all points to comply with all applicable domestic and international laws. And apart from those laws, the alleged operations here [‘lethal action’ against a US citizen in Yemen] would be guided by fact-intensive military and intelligence determinations involving command and policy judgments in the context of highly context-specific diplomatic and logistical considerations.Indeed, District Courts have ruled, in support of Justice Department submissions, that the President and his military and national-security advisors (foremost among them the Defence Secretary and CIA chief) are the sole qualified interpreters of the geographical scope and temporal extent of the armed hostilities authorized by Congress in September 2001.It is, they have agreed, ‘inappropriate for a court…With every emergency, constitutional protections are reduced, and after the emergency is over, enhancement of constitutional powers is either maintained or not fully eliminated, so that the executive ends up with more power after the emergency than it had before the emergency.With each successive emergency, the executive’s power is ratcheted up.The administrative state has thus helped to create a wealthy, educated population and a super-educated elite whose members have the leisure and affluence to care about matters such as civil liberties, who are politically engaged to a fault, and who help to check executive abuses. Indeed, Posner and Vermeule describe a President ‘substantially constrained by the ambient force of mass public opinion and the implicit threat of political backlash…he is enslaved to the opinion polls.’ The figurative language betrays its remoteness from reality; the description cannot but provoke mirth.Quite how this nosy busybody public, shorn of institutional levers by which to act upon what it ‘care[s] about’, monitors and ‘[brings] to light’, is supposed to apply its iron shackles, is anyone’s guess. A populace, in the short-run constantly misinformed in the most blatant of ways, in the longer term kept ignorant and poorly educated, and allowed every few years to participate in voting rituals during which mass support is brigaded behind elite policy aims never forms anything but a weak and pliable external constraint on the activity of administrators, upper-level bureaucrats and ministers.If domestic security is at risk, then intrusive searches should be tolerated.There is no reason to think that the constitutional rights and powers appropriate for an emergency are the same as those that prevail during times of normalcy.Viewed broadly, it must be agreed that there now are fewer institutional or procedural constraints on executive power (whether judicial review of administrative action, or reliance on legislative consent or oversight).Posner and Vermeule write of the ‘ever-diminishing institutional capacities’ of the legislative and judicial branches relative to those of the executive, which has accrued ‘sweeping statutory and constitutional powers’.


  1. Eric A. Posner June 2016 Address University of. with Adrian Vermeule Oxford University Press 2007. Accommodating Emergencies, 56 Stan. L. Rev. 605.

  2. Which will look at a recent and far more interesting paper by Posner and Vermeule. As Posner and Vermeule make plain in their ‘Accommodating Emergencies.

  3. Posner and Vermeule call ratchet. Eric Posner & Adrian Vermeule, Accommodating Emergencies, in The. “The NSA Surveillance Controversy How the Ratchet.

  4. Jul 01, 2011. interesting paper by Posner and Vermeule. In 2003, Eric Posner. Law Review called ‘Accommodating Emergencies’. to “Strange days.

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