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The Executive Unbound prescribes aspirin for a metastasizing administrative state


The Executive Unbound(Oxford University Press) is one of those books that put you to sleep when you read it but keep you awake at night worrying about it. Law professors Eric Posner and Adrian Vermeule make the case that "legal liberalism" as a guiding philosophy of American government has failed-but don't worry, they say, we'll be fine: Politics and public opinion will save us from would-be American dictators.

In summary, legal liberalism holds that legislatures should govern and the executive and judicial branches should carry out and enforce the law, with each of the three branches of government checking and balancing the power of the other two. But for more than a century, at least, executive power has been ballooning and now overwhelms the power of Congress and the judiciary. The Madisonian separation of powers, the authors write, is now a "historical curiosity."

They note that presidents and executives still operate within significant legal constraints, but their overall point is certainly true, and in two senses. The administrative state has become a 2 million-person behemoth. Its officials' role in the lives of everyday Americans has become so pervasive we take it for granted. From Medicaid to Social Security, from farm subsidies to the FDA, from the Centers for Disease Control to the IRS, from the Fed to FEMA, the executive branch sets policy, enforces standards, and takes actions that affect citizens in every area of life. In fact, if not officially, the executive has lawmaking authority.

Further, the presidency itself has gradually been accruing all sorts of power, despite the occasional high-profile constitutional showdown with Congress. Aside from the influence the president exerts through his choice of officials to run all these agencies, presidents are increasingly willing to act unilaterally to accomplish their goals. Congress reserves the right to declare war, yet presidents have sent troops into armed conflict at least 100 times.

The reasons for this are many, but the authors focus on two. First, Congress has steadily delegated power to the executive through legislation, at least partly through necessity. Government has grown far too big and complex for Congress to monitor effectively, let alone manage. Second, say Posner and Vermeule, only the executive branch has the ability to react to the emergencies that regularly fall upon the nation. When a crisis occurs, Congress steps aside to let the executive handle it, and then in the aftermath delegates new powers to the executive. Consider, for two obvious examples, the Authorization for Use of Military Force on Sept. 18, 2001, which gave broad powers to the president to combat terrorism, and the administration's response to the 2008 stock market crash.

According to Posner and Vermeule, the Madisonian formulation of the executive, legislative, judicial branches checking each other's power was flawed from the start. Institutions are supposed to compete for power by limiting the other branches, but it hasn't worked that well. Among other problems, the interests of congressmen do not necessarily line up with the interests of Congress.

Many commentators and scholars have noted and lamented this growth of executive power, but there is no need for "tyrannophobia," assert the authors, because presidents are still bound by politics and public opinion. The growth of the executive state is "inevitable," but presidents must be elected and so they are unlikely to do anything without broad public support. Their need for credibility and popularity make the risk of an American dictator is extremely low.

Posner and Vermeule may be right that the growth of the administrative state was inevitable in a modern world. But one would hope that they're wrong that we can do nothing about it.

But to assert that nothing needs to be done about it is to grossly misunderstand human nature. The Founders understood that sinful men, unrestrained, tend to abuse power. Whether or not the federal government's increased power has been to this point harmful or helpful overall, allowing power to continue to concentrate involves a huge risk for future generations. Like doctors who prescribe aspirin for cancer, they're right about the unnerving growth of the administrative state but fail to grasp the need for strong medicine.

Les Sillars

Les is a WORLD Radio correspondent and commentator. He previously spent two decades as WORLD Magazine’s Mailbag editor. Les directs the journalism program at Patrick Henry College in Purcellville, Va.

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