Legal Commentary

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By Eric Posner

A comment to my reply post made me realize that I accidentally omitted the following paragraph in that post.

 A number of responses to my third post on executive primacy and domestic law argued that in fact in domestic affairs the executive is not unbound. These responses noted some recent examples where President Obama?s agenda was thwarted by Congress. However, we did not argue that Congress has no power at all, or that the president is an actual dictator! I mentioned, for example, that Congress defeated Obama?s attempt to secure a climate bill, which required Obama to (only incompletely) circumvent Congress using his regulatory powers. So is the glass half full or half empty? Answering this question raises a significant methodological problem: it is virtually impossible to tell when the president respects Congress?s authority out of sense of legal obligation, and when the president is in fact responding to the same political factors that motivate Congress to block his program?in other words, politics is the omitted variable. But history provides a useful perspective. There is a long-term trajectory, in this country and many other democracies, in the direction of executive primacy in domestic as well as foreign affairs, which one can identify only by comparing present to past. No one denies that the New Deal regulatory system gave presidents immense powers that did not exist prior to its creation, and that this system has only grown over the years. The financial regulation and health care laws are only the latest in a long series of delegations from Congress to the president, and they confirm that long-term trends have not been reversed in the Obama administration. We are talking about a continuous institutional development that reaches back almost a century and today is entrenched. It is time for legal thought to make its peace with it.

Full post as published by The Volokh Conspiracy on March 24, 2011 (boomark / email).