[DOWNLOAD] "Deference to the Executive in the United States After September 11: Congress, The Courts, And the Office of Legal Counsel (Thirtieth Annual Federalist Society National Student Symposium)" by Harvard Journal of Law&Public Policy # eBook PDF Kindle ePub Free
eBook details
- Title: Deference to the Executive in the United States After September 11: Congress, The Courts, And the Office of Legal Counsel (Thirtieth Annual Federalist Society National Student Symposium)
- Author : Harvard Journal of Law&Public Policy
- Release Date : January 01, 2012
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 359 KB
Description
According to the "deference thesis," legislatures, courts, and other government institutions should defer to the executive's policy decisions during national security emergencies. (1) In this Essay, I will address two criticisms of the deference thesis. The first argument, which has been developed most powerfully by Professor Stephen Holmes, is that rules dominate standards at moments of crisis. (2) An executive that is unconstrained, that is, not bound by rules, will make worse policy choices than an executive that is bound by rules. (3) This type of argument is usually made in the context of urging legislatures and courts to constrain the executive during emergencies. (4) Some commentators, however, doubt whether it is possible for legislatures and courts to constrain the executive during emergencies. (5) These doubts have led to a second argument that the executive should be bound by institutions within the executive branch such as (in the United States) the Office of Legal Counsel, (6) or through the construction of new institutions that review the executive branch's actions. (7) Both arguments criticize the deference thesis but propose different solutions. The first argument proposes that Congress and the judiciary give the executive less deference; the second proposes that officials within the executive branch give the President less deference. Thus, we can distinguish external constraints on the executive and internal constraints on the President. Both arguments are flawed. The external constraints argument gets the normal analysis backwards: rules are better for routine, recurring situations. Although some emergencies are, in fact, routine, the type of emergency that calls for deference is not. The internal constraints argument, as normally presented, makes the fatal assumption that the President can be bound by his own agents against his own perceived interest, and relies on other questionable premises about the structure of government in the United States.