Vermeule and Barron Debate Executive Power

BY APRIL WARD

The Harvard Federalist Society along with the National Security & Law Society hosted a discussion on law, liberty, and national security between Professor Adrian Vermeule and Professor David Barron last Friday.

Professor Vermeule opened by describing the premise of his new book entitled Terror in the Balance: Security, Liberty, and the Courts. Co-authored with Professor Eric Posner, the book explains why the government should be granted wide discretion “to adjust policy and liberties in the times of emergency.” It also emphasizes the benefits of unilateral executive action and strong executive powers during these times.

Vermeule explained that the executive unilateral theory holds that courts and Congress should and do “defer heavily to the executive branch” during extreme emergencies like 9/11 and Pearl Harbor. After the crisis clears, the other branches reassert themselves.

“During emergencies, there is a sudden spike in uncertainty that is publicly observable,” he said. “The executive branch has the virtues of speed, secrecy, decisiveness, and force. During these times, judges and legislators can cause delay through excessive review, and more process comes with opportunity costs. The Executive branch has to sail on uncharted waters, but the other institutions are hopelessly adrift.”

Vermeule also emphasized that nothing in the book is inconsistent with the President’s duty to obey the law, but presidents can and do have the power to disobey the law but must be prepared to pay the costs.

“It is misleading to say presidents mainly follow statutes. For instance, President Clinton violated war powers in the bombing of Kosovo. There’s a political cost to presidents violating the law, but presidents can decide to do it,” he said.

Barron emphasized that although presidents can engage in “fancy construction” of statutes, there is not a strong historical practice of presidents acting in the face of statutes. He said that Congressional oversight was strongest during the Civil War national emergency situation, and the war ended favorably.

“It’s uncertain that we want to assign an aggressive posture to one of the government branches. During Hurricane Katrina, Governor Blanco’s performance displayed that the executive sometimes doesn’t display sufficient leadership.”

Barron also distinguished between the President’s acting without express authorization and a President’s decision to act in the face of a limiting statute.

“The President can act without express authorization,” Barron said, “but the aspect of being able to violate statutes worries me because it goes unchecked. By contrast, if the President understands he is limited, we have mechanisms by which he can go to Congress to have limits removed. It isn’t hard to do.”

The discussion ended with responses to student questions.

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