Getting to the Rule of Law: NOMOS L

7. The Instability of “Executive Discretion”

144 7 THE INSTABILITY OF “EXECUTIVE DISCRETION” LIONEL K. McPHERSON In the United States, terrorism—particularly terrorism that originates in the Muslim world—is widely believed to constitute an unprecedented menace. Post-9/11 doctrine holds that the country can no longer afford to rule out national security measures that many citizens in the past would have dismissed as disreputable. Such measures, we are told, might be necessary to preserve “our way of life” in “the age of terrorism,” even when they are at odds with basic tenets of domestic or international law. If this necessity is seen as a perverse irony, the perversity is widely taken to reflect the fanatical evil of the country’s terrorist foes, not the corruption of the ideal of American values. Efforts to defeat aggressive opposition to U.S. foreign engagement have eroded the civic notion that respecting the rights of individuals, even when doing so might not be legally expedient or ensure public safety, is a fundamental moral and political commitment. Thus, ideas and practices such as “harsh interrogation” or torture, “indefinite detention” without or despite trial, and “retroactive immunity” from criminal liability have become normalized as fit for serious public debate and acknowledged government policy. Linked to such practices had been an explicit attempt by the Bush-Cheney regime to constitutionalize a very strong version of the “unitary executive theory” of presidential power. This version, The Instability of “Executive Discretion” 145 which maintains that courts and Congress cannot impose real limits on the president’s exercise of executive power, is now especially unfashionable. Yet Benjamin Kleinerman’s focus on executive power through the lens of evolving separation-of-powers jurisprudence is hardly less timely. In the realm of national security, the spirit of a strong version of the unitary executive theory lives on through Barack Obama. For example, the Obama administration has asserted a “state secrets privilege” that would deny alleged torture victims a court hearing “any time a complaint contains allegations , the truth or falsity of which has been classified as secret by a government official.”1 The executive branch continues to insist, shifting to a purportedly pragmatic rationale, that government actions can lie outside judicial review. Kleinerman is sympathetic to wide latitude for executive power on matters of national security—which is to say, he broadly accepts post-9/11 doctrine. At the same time, he envisions executive power being kept in check by cultivating in citizens a proper veneration of the Constitution. He favors a separation-of-powers model in which each branch of government conceives of its power as independent from and in contest with the powers of the others . This model, he claims, is most in line with a traditional understanding of the Constitution and best balances national security and protection of individual rights and liberties.2 Setting aside the matter of American constitutional interpretation, an obvious question is how this balancing is supposed to work. According to Kleinerman, the people’s “love of the limiting aims of the Constitution” would politically embolden Congress “to cite the Constitution as it calls on the president to justify extralegal or illegal activities.”3 Why he believes this is not clear. Congress is unlikely to become unusually responsive to ordinary citizens on such amorphous grounds. Presidents are already in the habit of citing the Constitution, under some interpretation or other, to justify activities that might appear to be illegal. Moreover, Congress seems to view its role less as an independent branch of government than as an institution divided along party lines, with Democrats and Republicans overwhelmingly dedicated to advancing their own political interests first and their party’s interests second . A deeply divided citizenry seems largely to share the priority of aligning with one’s party politics and aims over consistent, 146 Lionel K. McPherson conscientious application of the Constitution (see, e.g., Bush v. Gore). In short, the notion that popular love of the Constitution will support a separation-of-powers check on executive power is wildly optimistic. But Kleinerman has pressing reason for concern about unchecked executive power. He seems to grant that the president can have the authority to engage in illegal activities—by virtue of the singular, distinctive authority of the president. While post-9/11 national security doctrine urgently appeals to “the unknowable threats of a dangerous world,”4 the argument sounds more rhetorical than substantive. The world has...