Separation of Powers
A critique of Professor Goldsmith's defense of the adequacy of current institutional limits on executive power
One hot summer day, following a week-long marathon of grading 130 Constitutional Law exams, I received a visit from a student who appeared in my office to protest her grade vociferously. She arrived clutching the marked-up exam that she had written during the allocated three hours. Her exam was four pages long. And she pointed to the last lines of the exam, and then pulled out a copy of the exam I had designated as the best in the class, and contended that she should have received the same grade. Her reasoning was simple: “I got the same answer, so I should get the same grade.” I pointed out, however, that the model exam was a twenty-page-long exegesis of the same problem, and reached the same answer that she did by a completely different (and more accurate) path. In the end, I told her, a grade is not simply a function of the bottom-line answer, but rather of the process used to reach the result.
With The Terror Presidency, Professor Jack Goldsmith wrote, hands down, the very best analysis of the national security issues surrounding President George W. Bush’s tenure. In Power and Constraint: The Accountable Presidency After 9/11, Goldsmith returns to the same set of problems, but adopts a different tack. He argues that the modern wartime Executive is constrained in new ways beyond the traditional system of checks and balances, and that these new constraints combine to create an effective system that checks executive power. Though the modern wartime Executive may disregard traditional limits on presidential power and attempt to act unilaterally, new checks from an aggressive press, a watchful and technologically enabled public, and the legalization of warfare combine to constrain the executive branch. Goldsmith argues that this system is the type of reciprocal restraint of which our Founders would have approved (p. 243).
Goldsmith’s claim ultimately boils down to one about how presidential constraint arises from a stochastic mélange produced by these newly empowered actors. But in his analysis of the constraint imposed on the modern Executive by this new system of checks and balances, Goldsmith fails to account for the values served by good process. Just as with a student’s four-page exam (which might reach a correct result but probably will not), the path by which the Executive is constrained matters, because it will significantly affect the substantive quality and sustainability of that end result. Goldsmith’s new system of accountability relies on a combination of government leaks and self-checking out of fear of reprisal, whereas the traditional system trusts “[a]mbition . . . to counteract ambition.” The latter system – the one envisioned by the Founders – has significantly fewer side effects attached to the process of checking the Executive.
In this Review, I argue that the particular process employed to constrain the Executive has consequences beyond the mere fact of achieving some level of constraint, and the “new” system of checks and balances has more costs associated with it than the traditional, constitutionally envisioned system, which primarily relies on government officials. In the end, many different methods might be used to achieve “constraint,” broadly conceived, but the process chosen to reach that constraint has substantive implications. Part I discusses the relationship between the process used to check the Executive and the substance of the constraints imposed. It contends that, just as the Coase Theorem predicts, the initial set of entitlements will strongly influence the eventual result, and that Coasean analysis provides a helpful frame through which to assess Goldsmith’s claim that the new constraints he identifies can substitute for Madisonian checks and balances. Part II analyzes Goldsmith’s speculation that the modern cycle of permission and constraint is likely to continue, and suggests that future inquiry should examine whether particular policy solutions could be developed, in advance of the next crisis, that might break this cycle.