Hercules, Herbert, and Amar: The Trouble With Intratextualism

Commentary on, Akhil Reed Amar, Intratextualism, 112 Harvard Law Review 747 (1999)

The Credible Executive

Legal and constitutional theory has focused chiefly on the risk that voters and legislators will trust an ill-motivated executive. This paper addresses the risk that voters and legislators will fail to trust a well-motivated executive. Absent some credible signal of benign motivations, voters will be unable to distinguish good from bad executives and will thus withhold discretion that they would have preferred to grant, making all concerned worse off. We suggest several mechanisms with which a well-motivated executive can credibly signal his type, including independent commissions within the executive branch; bipartisanship in appointments to the executive branch, or more broadly the creation of domestic coalitions of the willing; the related tactic of counterpartisanship, or choosing policies that run against the preferences of the president’s own party; commitments to multilateral action in foreign policy; increasing the transparency of the executive\u27s decisionmaking processes; and a regime of strict liability for executive abuses. We explain the conditions under which these mechanisms succeed or fail, with historical examples

Should Coercive Interrogation Be Legal?

Most academics who have written on coercive interrogation believe that its use is justified in extreme or catastrophic scenarios but that nonetheless it should be illegal. They argue that formal illegality will not prevent justified use of coercive interrogation because government agents will be willing to risk criminal liability and are likely to be pardoned, acquitted, or otherwise forgiven if their behavior is morally justified. This outlaw and forgive approach to coercive interrogation is supposed to prevent coercive interrogation from being applied in inappropriate settings, to be symbolically important, and nonetheless to permit justified coercive interrogation. We argue that the outlaw and forgive approach rests on questionable premises. If coercive interrogation is ever justified, and the benefits outweigh the risks of error and unintended consequences, it should be legal, albeit strictly regulated. The standard institutional justifications for outlaw and forgive - rules/standards problems, slippery slopes, and symbolism - are unpersuasive

The Credible Executive

Legal and constitutional theory has focused chiefly on the risk that voters and legislators will trust an ill-motivated executive. This paper addresses the risk that voters and legislators will fail to trust a well-motivated executive. Absent some credible signal of benign motivations, voters will be unable to distinguish good from bad executives and will thus withhold discretion that they would have preferred to grant, making all concerned worse off. We suggest several mechanisms with which a well-motivated executive can credibly signal his type, including independent commissions within the executive branch; bipartisanship in appointments to the executive branch, or more broadly the creation of domestic coalitions of the willing; the related tactic of counterpartisanship, or choosing policies that run against the preferences of the president’s own party; commitments to multilateral action in foreign policy; increasing the transparency of the executive’s decisionmaking processes; and a regime of strict liability for executive abuses. We explain the conditions under which these mechanisms succeed or fail, with historical examples

Crisis Governance in the Administrative State: 9/11 and the Financial Meltdown of 2008

This essay compares crisis governance and emergency lawmaking after 9/11 and the financial meltdown of 2008. We argue that the two episodes were broadly similar in outline, but importantly different in detail, and we attempt to explain both the similarities and differences. First, broad political processes and constraints operated in both episodes to create a similar pattern of crisis governance, in which Congress delegated large new powers to the executive. We argue that this pattern is best explained by reference to the account of lawmaking in the administrative state offered by Carl Schmitt, as opposed to the standard Madisonian view. Second, within the broad constraints of crisis politics, the Bush administration asserted its authority more aggressively after 9/11 than in the financial crisis. Rejecting competing explanations based on legal differences, the nature of the threat, or other factors, we attribute the difference to the Bush administration's loss of popularity and credibility over the period between 2001 and 2008 and to the more salient and divisive distributive effects of financial management