A Madisonian Response to Posner and Abebe

In seeking to further dethrone the aims of legal liberalism in the United States, Professor Posner, along with his University of Chicago Law School colleague, Professor Daniel Abebe, have jointly produced a renewed endorsement for broad judicial deference to an unchecked Executive in the context of foreign relations, provocatively entitled The Flaws of Foreign Affairs Legalism. Flaws boldly takes aim at “foreign affairs legalism” - a loosely defined “school of thought” among law professors, practitioners and judges who, among other things, believe the President should be constrained by law - which they assert rests on “implausible assumptions” and remains divorced from past and present historical and constitutional practice. The familiar justification for foreign affairs deference focuses heavily on the frequently perceived comparative institutional advantage of the Executive Branch, including access to information, decisiveness and swiftness of action. Such superior traits also gives Flaws reason to so conclude that courts should “[a]s much as possible, solicit the executive’s views on disputes involving foreign affairs and defer to these views except under unusual circumstances” since “[i]ncreased deference to the executive would ensure that the most accountable branch continues to exercise primary foreign affairs decision-making authority.” Forget about judicial review - not only is the President subject to an electoral test ensuring alignment with the public interest, but the President also cares about his “legacy” and finds himself constrained by both party politics and this public opinion. This paper argues that excessive faith in stand-alone functional arguments are not enough, since deference unduly removes accountability in favor for unchecked decision-making, an extreme anathema to the liberal constitutional structure underlying American government. Although I criticize the Executive-primacy model advocated by Flaws, I do recognize that functional concerns constitute significant components for sound national security policy. Nonetheless, effectiveness in foreign affairs responses cannot be limited to mere mechanical calculations. Simply placing faith with those in office to correct their own aberrations, pathologies, and errors without external checks will only undermine the demand for accountability, predictability, and transparency commonly understood to form the basis of the rule of law. In Part I, I attempt to demonstrate two things: First, that the Executive Branch has not been a good promoter of international law. Far from Flaws bold assertion that the “executive branch has been a primary motor for promoting international law”, recent American history suggests otherwise. More pointedly, violations of international law - including outright disregard for international treaty obligations, disrespect for international institutions and even complicity in encouraging flagrant violations of international human rights norm - are commonplace. Second, I contend that the Supreme Court has hardly indicated an inclination to defer to presidential claims in the foreign relations/national security context. In Part II, I explore and critique Flaws arguments for judicial deference. Contrary to the scenario that “[w]hen national emergencies strike, the executive acts, Congress acquiesces, and courts defer,” the judiciary has not and should not be marginalized. As the history of constitutional democracy shows, nations purporting to follow a clear constitutional set of legal principles often fall prey to the peculiar pathology of enacting draconian statutes in response to emergencies,” including most recently the Prevention of Terrorism Act of 2005 in the United Kingdom the PATRIOT Act in the United States, along with troubling acquiescence to increased presidential power claims at the expense of judicial constraint. The central point discussed in Section II is that Flaw’s arguments are in tension with social psychological findings suggesting inherent shortcomings in limiting decision-making review to a small group of individuals. The processes involved are manifold and complex, but studies have long pointed out the unconscious tendency of individuals processing of information to arrive at conclusions that suit some pre-determined end or goal. This pre-determined end or goal is often tendentious and ideologically driven, humans tend to persist in their biased theories, beliefs, and expectations. Instead of relying on all available sources of knowledge, individuals are often prone to selectively access a subset of beliefs and epistemological constructs that support prior held conclusions. Studies also have shown how individuals are often predisposed to fit their perceptions of policy-relevant facts to their group commitments. Identifying such empirically established psychological descriptions of human decision-making, giving a plausible and textured account of how they function, and devising instructive lessons from these findings can help improve policy making in the national security context. To be sure, the fact that the motivation of self-interest can distort human judgments does not translate into a free for all. Rather, it suggests excessive deference in those charged with securing American national security as a mistaken course of action.