49 Pages Posted: 17 Nov 2008 Last revised: 30 Sep 2009
Date Written: November 13, 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.
Suggested Citation: Suggested Citation
Posner, Eric A. and Vermeule, Adrian, Crisis Governance in the Administrative State: 9/11 and the Financial Meltdown of 2008 (November 13, 2008). U of Chicago Law & Economics, Olin Working Paper No. 442; U of Chicago, Public Law Working Paper No. 248; Harvard Public Law Working Paper No. 08-50; Harvard Law School Program on Risk Regulation Research Paper No. 09-04. Available at SSRN: https://ssrn.com/abstract=1301164 or http://dx.doi.org/10.2139/ssrn.1301164