Strengthening Constitutional Self-Government

No Left Turns

Mansfield on executive power

Don’t miss Harvey C. Mansfield, Jr.’s latest, a characteristically elegant and incisive look at the novelty and importance of the American executive against the backdrop of the NSA kerfuffle.   

Hat tip: Tom Cerber.

Update: The comments call out attention to this exceedingly hostile response by David Luban. I don’t yet have the energy to engage in a point-by-point response to Luban’s nastiness, but I’ll give you a taste of his argument and of how I’d respond on Mansfield’s behalf. (I hasten to add that HCM is perfectly capable of taking care of himself.)

Here’s Mansfield’s statement:

A republic like ours is always more at ease in dealing with criminals than with enemies. Criminals violate the law, and the law can be vindicated with police, prosecutors, juries, and judges who stay within the law: At least for the most part, the law vindicates itself. Enemies, however, not merely violate but oppose the law. They oppose our law and want to replace it with theirs. To counter enemies, a republic must have and use force adequate to a greater threat than comes from criminals, who may be quite patriotic if not public-spirited, and have nothing against the law when applied to others besides themselves. But enemies, being extra-legal, need to be faced with extra-legal force.

Here’s what Luban says:

"But enemies, being extra-legal, need to be faced with extra-legal force." A total non sequitur. Worse: mere games with words. A pickpocket is extra-legal, but it in no way follows that he needs to be faced with extra-legal force.

Mansfield begins with an overarching distinction between criminals and enemies, the former generally containable within the rule of law, the latter not self-evidently so. A criminal doesn’t aim to destroy a government, merely to break the rules for his own benefit. An enemy obviously aims to destroy the entire system of law. Must a government use only "lawful" means to deal with such a threat? Mansfield doesn’t think so. Neither does Abraham Lincoln who asked Congess on July 4, 1861, "are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?" And if to define by law is to delimit, what are we to make of this statement by Alexander Hamilton?

The authorities essential to the common defense are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies, and the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defense.

Mansfield, Lincoln, and Hamilton are all grappling with serious issues of national defense and national self-preservation. Luban is the one playing games with words.

Discussions - 18 Comments

Students of the American War of Independence will recall that one of its key lessons was the great inherent difficulty that legislative bodies have in managing urgent national-security affairs--what one might call "the Continental Congress front" was one of the hardest fronts Washington had to manage throughout that long and difficult war.

AG Gonzales noted publicly in his press conference with Gen. Hayden that the Administration explored the route of asking Congress to amend FISA, but was warned (the AG did not say by who) that the prospects for timely amendments were poor. He did not explicitly mention the danger that sensitive sources and methods might be leaked from the Hill during deliberations, but it wouldn’t surprise me if that wasn’t also a worry the Administration took into account. The offices of certain senators, Patrick Leahy for instance, are notorious for leaking. It’s also worth mentioning that getting to the FISA court could be a slow or bureaucratically fraught affair (as witness the case of the FBI field agents who tried, but were blocked from, getting a FISA warrant to search Zacarias Moussaoui’s computer), but that’s a separate issue having to do with judicial administration rather than the things that can make legislatures problematic when it comes to urgent security matters.

Wannabe Straussians cheerleading for each other. If you’re not addicted to the usual right wing pablum, go here:
http://balkin.blogspot.com


In brief, Mansfield argues that the U.S. Constitution creates a strong executive because the framers understood that the rule of law won’t suffice in an emergency. When the chips are down, the strong executive must seize the reins and do whatever it takes - and (like the Weimar Constitution whose emergency clause inspired Carl Schmitt to identify sovereignty with the "power of the exception") our Constitution builds the power of the exception into the President’s role. Unlike the currently notorious arguments of John Yoo, based on (selective) use of founding-era history, Mansfield defends the monarchical executive through philosophical abstractions ("executive power represents necessity", "The Constitution mixes choice and necessity"). The article is loaded with gravitas, and Mansfield obviously wants to sound deep.
But the depth is all on the surface. Read with care, Mansfield’s arguments are profoundly silly.

Continued.

Interesting article. Hey, I just want to really quickly give you guys a big thanks for keeping us loyal readers up-to-date on the Abramoff scandal - you know, how there’s no "there" there, that it’s much ado about nothing, and that it’s more Democrat "dirty tricks" and evidence that the liberals who control DC are continuing in their efforts at the "criminalization of politics," and so on...

Mansfield says: "Enemies, however, not merely violate but oppose the law. They oppose our law and want to replace it with theirs." But what politician or statesman is not an enemy of a sort, for even if they do not violate the law they certainly oppose some part of it. Conservatives want to overturn abortion, liberals may wish to further restrict and delimit the right to bear arms. Anyone with any ambition in politics has something he wants to legalize or ban. In other words opposition to the law is the motive force of all political organizations. Calling for extra legal force, seems to me to be calling for the guilotine, a very bloody revolution pitting folks at No Left Turns and PowerLine against DailyKos and the MSM.

I would argue that a Republic will always have an easier time dealing with criminals than with ennemies, because on all issues some part of the population will always disagree as to what should and should not be legal.

Every citizen of the Republic is a potential ennemy of the Republic, in so far as even something as simple as speeding qualifies as violating the law, and being unrepentent about it qualifies as opposing it, or perhaps this would only be the case if we tried to bring about an American autoban.

Mansfield’s definition of an enemy is pretty close to my understanding of an outlaw. But I believe that the american outlaw is a force for good, or at the very least the spearpoint for an idea whose time is comming. The best examples of American Outlaws: Jefferson, Emmerson, The Abolitionists, Harriet Beecher Stowe, Jesse James and the wild west, the Mafia and Las Vegas. Because all citizens of a republic are potential enemies of the republic, National self-preservation by these very citizens will entail National transformation which to other citizens will represent the opposite of self-preservation.

Many liberals today seem incapable of understanding the concept of "enemy," which might explain why they invoke the bogey-man of Carl Schmitt whenever they see anyone speaking of enemy as a distinct category of analysis. These liberals seem to be beholden to Kant’s perpetual peace argument of an international order enframed by laws.

What strikes me as an important new article on the subject of executive discretion has appeared in the latest issue of the American Pol Sci Assoc’s journal Perspectives on Politics by Benjamin Kleinerman (full disclosure--a friend of mine). Kleinerman points out that Hamilton and Madison were disagreed about the nature of executive discretion and that this has been a tricky debate for many years, but that Lincoln’s position transcends the classic "Hamiltonian"
and "Jeffersonian/Madisonian" positions in its faithfullness to the Constitution. His key finding I will quote: "For Lincoln, the Const. only countenances actions taken outside its bounds when those actions can be justified by the strictest understanding of necessity, namely the preservation of the document itself." Kleinerman’s article stands as a corrective to Bush supporters who tend to mention’s Lincoln’s actions as settling all debate about executive discretion, and convincingly shows the temptation of democratic peoples to fall back into permanent use of executive discretion on tricky areas, a temptation only heightened by the open-ended nature of the war on terror. I disagree w/ Kleinerman’s passing (in a Cincinatti Post op-ed [1/6])negative mention of the NSA program, which on the details I think has been best handled in John Hinderaker’s 12/22 Powerline post, but his article stands as a warning to conservatives to look more closely at the area of executive discretion, and in the zeal to defend what looks to be a sound decision (given what we know so far), to not make sloppy arguments that get us in the habit of relying on executive discretion too much. The underlying impulse of the Dems here, however twistedly it often comes to the surface, is one that everyone has to be on board with: keeping reliance on executive power limited in this new sort of war. Mansfield’s fine op-ed teaches fundamental truths about our system, but they are almost too fundamental, and in our present context they make us too comfortable, whereas Kleinerman’s Lincoln keeps us on our toes.

"Mansfield begins with an overarching distinction between criminals and enemies, the former generally containable within the rule of law, the latter not self-evidently so."

Then, given Bush’s apparent self-appraisal as exempt from the law, and thus not "self-evidently" "containable within the rule of law," I guess Bush himself could rightly be considered an enemy.

"An enemy obviously aims to destroy the entire system of law. Must a government use only "lawful" means to deal with such a threat?"

What’s funny is that, even looking at this directly, with the perpetrators of 9/11 as (appropriately) the enemy and Bush’s illegal wiretapping (note that something is illegal even if it’s "only" "technically" illegal and we use The Quotes of Sarcasm to try to dismiss it) as one effect, it appears that the enemy is on their way to achieving their aim. Permitting government officials -AKA "leaders"- to be above the law in dealing with the enemy’s threat encourages the public to see the laws as increasingly meaningless, and thus the legitimacy of the government, and the system of laws, are put at risk of being eroded, and eventually destroyed.

You’re right, Peter, that Lincoln asked Congress "are all the laws but one to go unexecuted." But his act was public and he defended it on its own merits in public. Congress was not in session. In addition, he defended his action in a letter to Congress (with the words you quote) and asked Congress to support his decision formally when they were back in session, and they did. He was fully aware of the dangerousness of his own actions from a constitutional standpoint. The context and the entire chain of events reveals a President who is very careful about assertions of executive power. Can the same be said of Bush?

Tom Cerber flagged the Kleinerman essay here, even providing a link.

I disagree with you Erica, the president is exempt from being an ennemy or an outlaw because he alone has outlaw priveleges(thus he can’t really even be called an outlaw.)

As Mansfield says "Necessity knows no law" and everyone takes advantage of this even in something as mundane as speeding. The question is: do we have more to lose from limiting unwise discretion or do we have more to lose from limiting wise discretion? But of course you can’t make a law that includes and codifies discretion. Like Citizens who are sometimes outlaws or enemies of the republic(whenever you break a law or wish to replace it with another rulling), likewise a president is sometimes in need of the power to escape the rule of law, and because the president is playing with a lot more chips on the table his need to circumvent the rule of law is often times greater. This is why the constitution allows the president emmergency powers, it is why the president takes an oath to execute the office of president and not merely an oath to execute the laws. Even Jefferson purchased Louisiana...

As Mansfield says: "To be held responsible, the executive must be able to act independently. To the extent that he depends on others to act, as in getting a law passed, responsibility is distributed to others and it is no longer clear who precisely is responsible. A president can evade responsibility by consulting with others and then, if something goes wrong, put the blame on them. This is one of the oldest tricks in the book, and canny politicians will often refuse to be consulted lest they get the blame for someone else’s mistake and lose the ability to lay blame themselves. To be sure of responsibility you must fix it on one person; true responsibility is sole responsibility. That is why, under our republican Constitution, the people, when they want to hold the whole government responsible, end up holding the president responsible."

Of course, as I have previously argued the president is no longer able to act independently.... this whole debacle now is simply makes my point again...People want a puppet president that they can blame... But we can only trully blame an "outlaw" president, because a president who doesn’t execute the office of president but rather is merely a passive executer of the laws, is responsible for nothing.

Erica says, "Permitting government officials -AKA "leaders"- to be above the law in dealing with the enemy’s threat encourages the public to see the laws as increasingly meaningless, and thus the legitimacy of the government, and the system of laws, are put at risk of being eroded, and eventually destroyed."

I say that personal responsibility sometimes requires seeing the laws as meaningless. In the military they say "do what your collar can handle". Everyone recognizes that necessity knows no law. Some people have serious moral objections to certain laws and thus are ennemies of those who feverently support them (abortion for example) but even if abortion was made illegal, people would have back alley abortions or go to Canada to get them done, and the penalties set forth would just be a matter of obstacles. Nobody is perfectly happy with all laws as they stand. Sometimes people wish to employ discretion to get around laws, this is perfectly acceptable until they get caught. In fact I don’t want a government with too much legitimacy. The way I see it this is actually the only reason why the government listening in on terrorists gives us pause, we think they could start listening in on us, and comming down on us for every discretionary action we take outside of the law. This would be very bad because our system of laws are not infallible! Immagine being suddenly prosecuted for every violation of the law that you have ever commited, this would actually be very bad, the penalties attached to the laws are callibrated with an understanding that most violators will escape. If most violators are no longer escaping then penalties should decrease to reflect this. In other words I shouldn’t have to pay as much for a speeding ticket if I am being caught by a cammera.

the president is exempt from being an ennemy or an outlaw because he alone has outlaw priveleges(thus he can’t really even be called an outlaw.)

I say that personal responsibility sometimes requires seeing the laws as meaningless.

I don’t want a government with too much legitimacy.

Sorry, but those last couple comments were really quite off-the-wall.

The president violates no laws in monitoring conversations that cross the border.
The criminal acts for local personal gain, the enemy acts for political ends. In between is the berserker and the vandal who destroy for the love of destruction. I understand criminals and enemies - the vandal I would put down without honor or ceremony.

AMONG the numerous advantages promised by a well constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice. He will not fail, therefore, to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure for it. The instability, injustice, and confusion introduced into the public councils, have, in truth, been the mortal diseases under which popular governments have everywhere perished; as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations. The valuable improvements made by the American constitutions on the popular models, both ancient and modern, cannot certainly be too much admired; but it would be an unwarrantable partiality, to contend that they have as effectually obviated the danger on this side, as was wished and expected. Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. However anxiously we may wish that these complaints had no foundation, the evidence, of known facts will not permit us to deny that they are in some degree true. It will be found, indeed, on a candid review of our situation, that some of the distresses under which we labor have been erroneously charged on the operation of our governments; but it will be found, at the same time, that other causes will not alone account for many of our heaviest misfortunes; and, particularly, for that prevailing and increasing distrust of public engagements, and alarm for private rights, which are echoed from one end of the continent to the other. These must be chiefly, if not wholly, effects of the unsteadiness and injustice with which a factious spirit has tainted our public administrations.

Response to Comment #7:

Brett, do you know much about the Civil War as an intelligence war? I don’t, but I’d be curious to know if Lincoln publicly defended every extraordinary executive action even in cases where such a public defense would have threatened to compromise the action’s effectiveness. Somehow I doubt that Lincoln and his people did so. I do know of at least one court order (Taney’s "Ex Parte Merryman" ruling) that Lincoln flatly ignored.

In our current case, Bush did brief Congress on the NSA’s intercepts program, but obviously to defend it publicly--as you appear to be suggesting Bush should have done--would have been to tip our enemies off to what we were doing and thereby destroy any effectiveness that the surveillance might have--a destruction that has now been accomplished courtesy of the illegal leakers and their pals at the Washington Post and New York Times, who have arrogated to themselves the power to decide which programs do or do not aid our national security.

As far as I know, the NY Times has still not explained why it decided to reverse its original, year-old agreement to the Administration’s request not to publish leaks about the intercepts program. Why the change of course? How about some public accountability from the NY Times?

Rainer: I don’t know anything about the question of Civil War intelligence, so you are on to an important difference. But there was also no FISA in 1861. As far as I know, Lincoln was very careful about his assertions of executive authority. I don’t know that he ever claimed that the inherent powers in Article II allowed him to violate otherwise valid law. The basic point: the attempt to analogize Lincoln and Bush skips over the fact of the imperial presidency.

Brett: Does a court order granting a writ of habeas corpus count as "otherwise valid law"? If so, Lincoln certainly "violated" the law in the Merryman case--for all we know, he blew his nose on Taney’s opinion; certainly he never let the habeas writ (which Taney sent a U.S. marshal to try and serve on the commandant of Fort McHenry, where Merryman was being held), be carried out. And Merryman was one of a large number so detained--they didn’t just have their mail read or their telegrams intercepted (the 19th-century equivalent of wiretapping); they were jailed without formal charges under an executive order. Presumably, Lincoln was relying on his inherent powers as commander-in-chief to do all this very "nonimperial" stuff (have civilians tossed into casemates under military guard, ignore court orders for urgent national-security reasons, and so on).

What happened to Merryman after Taney’s decision? Did the President insist on keeping him in military custody? No. Lincoln transferred his case to civilian courts. So it’s not quite accurate to say that Lincoln "blew his nose" on Taney’s opinion. In addition, Lincoln asked for and got congressional approval of the suspension. How does that accord with a Bushian "inherent powers" view?

Neely’s book on Lincoln and civil liberties is probably the most careful one out there - he looks at the extensive records kept by the army and comes to the conclusion that people were not tossed into military prisons willy-nilly. Neely argues that most people who were detained in the Civil War were swept up as a consequence of the dislocations that follow land warfare anywhere.

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