[opiniojuris] Eric Posner: The Scope of Deference

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Posted by Eric Posner:
The Scope of Deference
http://www.opiniojuris.org/posts/1187718917.shtml


   I agree that the concerns that Bobby Chesney identifies are real and
   important. There are no answers at the level of theory; the scope and
   level of deference must be worked out at the level of practical
   politics. In practice, as we have seen, the president (and presidents
   generally) press for maximal powers where they think they need them,
   subject to political constraints. President Bush has not argued that
   his commander-in-chief power gives him the right to dictate
   educational policy because such an argument is a loser politically as
   well as legally. The courts defer with respect to some actions and not
   others. Presidents often acquiesce when courts refuse to defer, but
   sometimes they put up varying levels of resistanceâappealing up the
   chain, or jurisdiction-shopping until they get a better result, or
   exploiting loopholes, or buying for time, or in rare instances (FDR,
   Lincoln) disobeying or threatening to disobey judicial orders. Public
   and elite responses to the performance of the relevant actors
   gradually determines the practical limits on presidential, judicial,
   and congressional action. Iâm afraid we donât have anything
   illuminating to say about how boundaries should be determined in
   practice, or how context-specific deference ought to be.
   But we do want to avoid the legalistic impulse to try to determine in
   advance what the rules should be. (Again, this is the impulse behind
   Ackermanâs Emergency Constitution.) There are obvious benefits from
   having rules stated in advance, but the rules/standards literature
   makes clear that there are costs as well. Emergencies are not like the
   revenue-generating behaviors that are regulated by the tax code.
   Because it is hard to anticipate the next emergency, rules determined
   today will inevitably be poorly suited to the emergency that occurs
   tomorrow. On balance, the unpredictability of emergencies argue in
   favor of general standards of conduct rather than rules.
   On a somewhat related issue, some of the comments might give readers a
   misleading impression that we take a dichotomous view: that the choice
   is between presidential dictatorship or not, and we opt for the
   former. Bobby Chesney correctly notes that the real debate is about
   the proper location on a continuum. To pick silly numbers for clarity,
   suppose 0 is pure executive government, 100 is pure legislative
   government, and 50 is some mix of deference and congressional/judicial
   oversight. We do not argue for 0, nor does anyone argue for 100. To
   pick more silly numbers, suppose that on most issues in normal
   (non-emergency) times the system is at 50. During emergencies, it
   typically goes down to (say) 20. Some civil libertarians seem to argue
   for, say, 40 or even 60 during emergencies. We want to say that 20
   seems rightâor, more precisely, there is no reason for thinking that
   20 is wrong. Civil libertarians make a series of arguments that 20 is
   too lowâthe panic argument, etc., as we noted earlier. In trying to
   refute these arguments, we are not committing ourselves to 0; we are
   committing ourselves to 20 for the duration of the emergency.
   A complicating factor, which I referred to in an earlier post, is the
   existence of other trendsâtechnological, cultural, geopoliticalâthat
   affect the optimal location on the continuum. So it may be that as
   weapons become cheaper, smaller, and more destructive, we will have to
   reconcile ourselves to a long-term decline from 50 to, say, 40. On the
   other hand, if foreign political extremism fades (as it has in the
   past, and will surely do again), the optimal point could rise from 50
   to some higher number.