Book review

Binding the Executive (by Law or by Politics)

Aziz Z. Huq

Assistant Professor of Law, University of Chicago Law School

Thanks to Daniel Abebe, Bernard Harcourt, Rick Hills, Trevor Morrison, Eric Posner, and Adrian Vermeule for their insightful and helpful comments, and to Eileen Ho for excellent research assistance. I am especially grateful to Professor Posner for graciously suggesting that I look closely at one of his books. I am pleased to acknowledge the support of the Frank Cicero, Jr Faculty Fund. All errors herein are mine alone.

The Executive Unbound: After the Madisonian Republic. Eric A. Posner and Adrian Vermeule. Oxford, 2010. Pp 3, 249.

Consider a recent snapshot of our imperial presidency. It is Thursday, September 25, 2008, in the Roosevelt Room of the White House. We are at the heart of the financial meltdown. Not two weeks before, investment bank Lehman Brothers filed for bankruptcy, jeopardizing hundreds of creditor counterparties, including major financial institutions. The following day, insurance giant American International Group (AIG) discloses enormous losses on credit default swaps, prompting the Federal Reserve to extend an emergency loan of $85 billion in exchange for a 79.9 percent equity stake in the company. One of the nation’s oldest money market funds, Reserve Primary Fund, experiences a run, collapsing to an unprecedented share price of less than a dollar and “breaking the buck.” It is clear the Treasury and the Federal Reserve need more funds to forestall a general liquidity crunch. In the Roosevelt Room, Treasury Secretary Henry Paulson Jr and Federal Reserve Chairman Ben Bernanke are addressing skeptical congressional leaders and the two presidential candidates, explaining that the “limits of the Fed’s legal authority” have been reached and that legislative action is needed to prevent “a depression greater than the Great Depression.” The meeting ends in disarray, a “partisan free-for-all.” And as the meeting breaks up, a desperate Paulson approaches Speaker of the House Nancy Pelosi, and—here’s the kicker—“literally bent down on one knee,” pleads for congressional action.

It is close to a tenet of faith among constitutional scholars of diverse persuasions that ours is a republic dominated by the executive branch. Economies of bureaucratic scale, coupled with the executive’s primacy in responding to new security, economic, and environmental crises, are said to have frayed the Constitution’s delicate interbranch balance of powers. As a consequence, it is conventional wisdom that our President is now “imperial,” and Congress “broken.” Eric Posner and Adrian Vermeule—hereinafter collectively “PV”—are among the most sophisticated advocates of this dictum. But with a twist. Drawing on political science, game theory models, and the economics of agency relationships, their book The Executive Unbound: After the Madisonian Republic proposes that neither law nor legally constituted institutions (that is, Congress and courts) in practice impose meaningful constraints on the federal executive.

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