Law Matters, Even to the Executive

In both constitutional and international law, many legal rules cannot be implemented without what most people would describe as the voluntary compliance of their target. Is that really “law”? Or is rule compliance in such circumstances just an expression of “interests”? Forget jurisprudence for the moment. As a practical matter, what does it mean to work as a lawyer in a field where the rules are not coercively enforced against private parties by an independent judiciary whose orders are implemented by a cooperative executive? This question has particularly high stakes for national security policy, where we find judicial deference at its highest, the centralization of modern government at its most pronounced, delegations of authority to the executive at their broadest, and contempt for idealism at its most self-satisfied. Two recent books on executive power prompt this return to such well-trodden ground. In The Executive Unbound: After the Madisonian Republic, Eric Posner and Adrian Vermeule claim that the constitutional rule-of-law apparatus is basically worthless. In Power and Constraint: The Accountable Presidency After 9/11, Jack Goldsmith says just about the opposite. This Review argues that Goldsmith is right and supplements his account by identifying a key mechanism in the political economy he describes. The Review begins by separating the various threads of argument advanced by Posner and Vermeule to expose how implausible their conceptual claims will seem to most lawyers. It then explores how their (largely unsupported) descriptive claims are contradicted by Goldsmith’s empirical account as well as by other evidence adduced here. The Review closes by suggesting that one of the most plausible causal mechanisms for the efficacy of law — the deep vein of respect for legality that characterizes our culture — is itself a primary target of Posner and Vermeule’s project.