38 Pages Posted: 20 Feb 2012 Last revised: 23 Oct 2016
Date Written: February 20, 2012
The Executive Unbound, by Eric Posner and Adrian Vermeule, is terrific - thought provoking and refreshing. It is a challenging must-read for those who believe that the Executive can or must be reined in by Congress or the courts and for those who believe that the Executive has improperly usurped the powers of the other branches, becoming the most roguish branch of government. Posner and Vermeule have shown that the modern Executive is much less bound by law than in the past and that in general this may be for the good. But they have not shown that the Executive is wholly unbound by law, or that the Executive should be. Part I of our review describes the book’s central arguments and situates it within the executive power literature. Part II concludes that Posner and Vermeule substantially overstate the lack of constraint the Executive faces in the modern era. Part III considers The Executive Unbound as a normative argument for adopting a legally unbound executive and finds the case not proven. We tentatively conclude that separation of powers and related constraints play an important role in creating something of a “Goldilocks Executive”: an executive neither much too strong nor much too weak, but about right.
Keywords: Executive Power, Madison, Checks and Balances, Plebiscitary Presidency, Delegation, War on Terror, Separation of Powers,
Suggested Citation: Suggested Citation
Prakash, Saikrishna and Ramsey, Michael D., The Goldilocks Executive (February 20, 2012). Texas Law Review, Vol. 90, No. 973, 2012; Virginia Public Law and Legal Theory Research Paper No. 2012-18. Available at SSRN: https://ssrn.com/abstract=2008419