The credible executive

University of Chicago Law Review

Volumn 74, Issue 3, 2007, Pages 865-913

  Posner, Eric A ^a   Vermeule, Adrian ^b  

^a UNIVERSITY OF CHICAGO LAW SCHOOL   (United States)

^b HARVARD LAW SCHOOL   (United States)

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[No Author keywords available]

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EID: 36249004259     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (126)

1. See Terry M. Moe and William G. Howell, The Presidential Power of Unilateral Action, 15 J L, Econ, & Org 132, 145-47 (1999) (arguing that presidents have the power to take unilateral action because of Congress's collective action problems and presidents' ability to block congressional attempts to reverse them).
2. We use "trust" and "credibility" as synonyms. In other words, we adopt a rationalist account of trust rather than a nonrational or affective account, and thus follow the lead of Russell Hardin. See Russell Hardin, Trust and Trustworthiness 13-21 (Russell Sage paperback ed 2004). However, as will become apparent, we do not subscribe to Hardin's pessimism about the ability of institutions to successfully generate credibility in modern mass democracies. See id at 151-72.
3. For an overview of competing accounts of political trust, see Mark E. Warren, Democratic Theory and Trust, in Mark E. Warren, ed, Democracy and Trust 310-45 (Cambridge 1999).
4. See Philippe Aghion, Alberto Alesina, and Francesco Trebbi, Endogenous Political Institutions, 119 Q J Econ 565, 594-600 (2004) (creating a model of the tradeoff between delegating power to leaders and checking their risk of tyranny to explain, among other things, the greater benefits of delegated power during times of crisis).
5. See Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118 Harv L Rev 915, 920 (2005) (challenging the assumption that government behavior is driven by empire building and instead positing that government officials are motivated by constituents' policy preferences and their own self-interest).
6. In legal scholarship, the closest precedent for our work is Michael A. Fitts, The Paradox of Power in the Modern State: Why a Unitary, Centralized Presidency May Not Exhibit Effective or Legitimate Leadership, 144 U Pa L Rev 827, 878-91 (1996) (arguing that the visibility and centralization of the presidency can undermine its legitimacy and power through the public's inability to accurately assess presidential error and responsibihty). However, Fitts does not use a rational choice approach, as we do, but focuses on matters of public psychology. We abstract from such issues. There is also a related literature in administrative law that implicitly argues that the president can be trusted, but the literature does not address the dilemma of executive credibility that is our focus.
7. See, for example, Matthew C. Stephenson, Public Regulation of Private Enforcement: The Case for Expanding the Role of Administrative Agencies, 91 Va L Rev 93, 95-97 (2005) (arguing that Congress and courts should delegate the power to make and limit private rights of action to the executive);
8. Eric A. Posner and Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U Chi L Rev 1721 (2002) (criticizing theories that justify restrictions on the power of Congress to delegate to the executive). Overall, the strand of political science literature that has had most influence on the legal academia has focused on the problem of executive overreaching.
9. See, for example, Edward S. Corwin, The President: Office and Powers, 1787-1984 303-45 (NYU 5th rev ed 1984) (Randall W. Bland, Theodore T. Hindson, and Jack W. Peltason, revising authors) (describing concerns with "[t]he revival of presidential leadership in legislation");
10. Clinton Rossiter, The American Presidency 53-73 (Harcourt, Brace 1956). Other work in political science, especially its rational choice analysis of institutions, is more directly relevant; we cite this work as appropriate in the body of the discussion.
11. See Wayne S. Cole, Roosevelt and the Isolationists, 1932-45 397-98 (Nebraska 1983).
12. See Stephen E. Ambrose, 2 Eisenhower: The President 568-69, 571-73 (Simon and Schuster 1984) (detailing how, after a U-2 spy plane was shot down over the Soviet Union, Eisenhower approved a statement claiming that the plane was a weather research plane).
13. See Walter LaFeber, Johnson, Vietnam, and Tocqueville, in Warren I. Cohen and Nancy Bernkopf Tucker, eds, Lyndon Johnson Confronts the World: American Foreign Policy, 1963-1968 31, 49 (Cambridge 1994) (noting growing dissatisfaction with Johnson due, in part, to evidence that the Tonkin Gulf crisis had "not occurred at all, or at least not as Johnson and McNamara had reported the incident[]").
14. See Stephen E. Ambrose, 2 Nixon: The Triumph of a Politician, 1962-1972 256-58 (Simon and Schuster 1989) (describing Nixon's secret bombings of Cambodia), 344 (noting Nixon's lies about previous American actions in Cambodia during his announcement of the U.S. incursion there).
15. See Lawrence E. Walsh, Firewall: The Iran-Contra Conspiracy and Cover-up 230-32 (W.W. Norton 1997) (questioning the credibility of former President Ronald Reagan's testimony denying knowledge of the Iran-Contra scandal during the trial of John Poindexter).
16. See Haynes Johnson, The Best of Times: America in the Clinton Years 233-34 (Harcourt 2001) (describing former President Bill Clinton's many denials of his relationship with Monica Lewinsky).
17. See Cole, Roosevelt and the Isolationists at 364, 370-71 (cited in note 6) (noting Roosevelt's belief that he could not bring the U.S. into war with about 80 percent of the country opposing American involvement).
18. Forrest McDonald, The American Presidency: An Intellectual History 406-07 (Kansas 1994) (arguing that Roosevelt's efforts at bipartisanship helped to solidify the country during wartime).
19. See Stanley R. Sloan, Negotiating Article 5, NATO Rev (Summer 2006), online at http://www.nato.int/docu/review/2006/issue2/english/art4.html (visited Apr 20, 2007) (analyzing the debate over Article 5, the collective-defense commitment, in the Washington Treaty negotiations that established NATO).
20. Arthur M. Schlesinger, Jr., The Imperial Presidency 128 (Houghton Mifflin 1973) (discussing the formulation of the Truman Doctrine as a way to garner congressional support for the President's foreign policy goals).
21. See Richard E. Neustadt, Presidential Power and the Modern Presidents: The Politics of Leadership from Roosevelt to Reagan 40-46 (Free Press rev ed 1990) (describing how Truman was only able to get the Marshall Plan through a Republican-controlled Congress with the help of Vandenberg, among others);
22. Schlesinger, The Imperial Presidency at 128-29 (cited in note 15) ("Even the 80th Congress, as it hacked away at Truman's domestic program, would not oppose his foreign policy when the President could persuade Vandenberg to go along.").
23. See Schlesinger, The Imperial Presidency at 129-30 (cited in note 15) (presenting the downside of Truman's bipartisan foreign policy, with Congress undercutting the president on China policy and the defense budget).
24. See Stephen R. Graubard, Mr. Bush's War: Adventures in the Politics of Illusion 9, 122 (Hill and Wang 1992) (noting both the media and Congress's expectation that the Gulf War would produce numerous American casualties).
25. The Authorization for Use of Military Force Against Iraq Resolution, Pub L No 102-1, 105 Stat 3 (1991), codified at 50 USC § 1541 note (2000), passed by fewer than seventy votes (250-183). See HJ Res 77, 102d Cong, 1st Sess, in 137 Cong Rec H 390, 485 (Jan 12, 1991) (roll call vote no 9). The Senate resolution passed by only five votes (5247). See Authorizing Use of U.S. Armed Forces Pursuant to U.N. Security Council Resolution, SJ Res 2, 102d Cong, 1st Sess (Jan 3, 1991), in 137 Cong Rec S 369, 403 (Jan 12, 1991).
26. See Graubard, Mr. Bush's War at 117-18 (cited in note 18) (describing Bush's use of the U.N. Security Council and Arab country allies).
27. See Alan Beattie, US May Present New Resolution This Week; Security Council, White House Determined to Disarm Saddam Even If Widespread International Support Withheld, Fin Times 6 (Feb 19, 2003) (noting Bush's determination to disarm Saddam Hussein without broad international support).
28. See Testimony of Samuel R. Berger before the National Commission on Terrorist Attacks upon the United States 2-7 (Mar 24, 2004) (submitted testimony of Samuel R. Berger, Former Assistant to the President for National Security Affairs), online at http://www.9-11commission.gov/hearings/hearing8/ berger_statement.pdf (visited Apr 20, 2007) (describing the ten main elements of the Clinton Administration's counterterrorism strategy).
29. See James T. Patterson, Restless Giant: The United States from Watergate to Bush v. Gore 392-93 (Oxford 2005) (noting that critics accused Clinton of "using military firepower in order to divert attention from his personal excesses");
30. Johnson, The Best of Times at 406-07 (cited in note 11) (comparing public skepticism of Clinton's bombing of al Qaeda bases shortly after admitting to the Lewinsky affair with similar skepticism of Clinton's military strike against Iraq during the impeachment debate).
31. See Johnson, The Best of Times at 406 (cited in note 11) ("[C]ritics murmur that [Clinton is] playing out a real-life Wag the Dog scenario, a reference to a new film about a president who orders military action to divert the public from a sex scandal in which he is involved.").
32. See Stephen Kinzer and Todd S. Purdum, Threats and Responses: The National Mood, NY Times A13 (Aug 5, 2004).
33. Richard Clarke, Clinton's counterterrorism chief, suggests that Clinton was not affected by politics, at least for the initial decision to strike. See Richard A. Clarke, Against All Enemies: Inside America's War on Terror 185-86 (Free Press 2004) ("Clinton made clear that we were to give him our best national security advice [about hitting Afghan camps], without regard to his personal problems."). But then Clarke says: Our response to two deadly terrorist attacks was an attempt to wipe out al Qaeda leadership, yet it quickly became grist for the right-wing talk radio mill and part of the Get Clinton campaign. That reaction made it more difficult to get approval for follow-up attacks on al Qaeda, such as my later attempts to persuade the Principals to forget about finding bin Laden and just bomb training camps. Id at 189.
34. Often, as in the case of surveillance of terrorist communications by the National Security Agency, the president cannot even announce the program, for to do so would reduce or eliminate its value, but must anticipate that the secret will eventually come out, in which case he will have to defend it.
35. See Jonathan Mahler, Terms of Imprisonment, NY Times sec 7 at 6 (July 30, 2006) (stating that the motivation for the Guantánamo suicides is unclear).
36. For a textbook treatment, see Patrick Bolton and Mathias Dewatripont, Contract Theory 14-15, 129-70 (MIT 2005) (outlining models of principal-agent relations).
37. On some views, "what the voters would choose" is what the median voter would choose. See Anthony Downs, An Economic Theory of Democracy 115-22 (HarperCollins 1957). Our argument does not depend on this particular theory; it depends only on the assumption that there is some coherent criterion of public preference based on some aggregation of citizens' values and interests. We are agnostic about, and for present purposes need not take a stand on, the content of that criterion.
38. By statute, even classified presidential papers are unsealed after twelve years. See 44 USC § 2204(a) (2000). However, President George W. Bush's recent executive order may qualify this. Executive Order 13233, 3 CFR 815 (2001), reprinted in 44 USC § 2204 (Supp 2002) (allowing former presidents to withhold records as privileged after the twelve year moratorium with the concurrence of the incumbent president). See also Marcy Lynn Karin, Note, Out of Sight, but Not Out of Mind: How Executive Order 13,233 Expands Executive Privilege While Simultaneously Preventing Access to Presidential Records, 55 Stan L Rev 529, 548-52 (2002) (describing speculation that Executive Order 13233 was promulgated to protect the records of current Bush advisors who worked under President Reagan, the vice-presidential and presidential records of George H.W. Bush, and the future records of Vice President Cheney).
39. See Part I.A.
40. This is a standard rational-choice assumption. We will ignore a well-known problem of infinite regress that afflicts the economic theory of information: knowing the marginal benefit of the next bit of information itself requires information. See Jon Elster, Introduction, in Jon Elster, ed, Rational Choice 1, 25 (NYU 1986).
41. See Marc J. Hetherington, The Political Relevance of Public Trust, 92 Am Polit Sci Rev 791, 791 (1998) (finding that declining trust in elected officials not only reflects but contributes to public dissatisfaction with those officials, making it more difficult for the government to succeed).
42. For a general comparison of these two methods, see James D. Fearon, Electoral Accountability and the Control of Politicians: Selecting Good Types versus Sanctioning Poor Performance, in Adam Przeworski, Susan C. Stokes, and Bernard Manin, eds, Democracy, Accountability, and Representation 55, 70-84 (Cambridge 1999) (describing the interaction between selection and sanctioning).
43. The enormous literature on this topic begins with Michael Spence, Job Market Signaling, 87 Q J Econ 355 (1973).
44. See Geoffrey Brennan, Selection and the Currency of Reward, in Robert E. Goodin, ed, The Theory of Institutional Design 256, 262-72 (Cambridge 1996) (arguing that universities can hire better academics by including nonfungible academic inputs, such as research budgets and in income packages, because of their differential effect on desirable and less desirable candidates).
45. See Bolton and Dewatripont, Contract Theory at 169-70 (cited in note 29) (reviewing the literature on the moral hazard problem).
46. See id at 228-32 (creating a model that combines adverse selection and moral hazard).
47. See Part IV.A.
48. See Cass R. Sunstein, Why Societies Need Dissent 150-52 (Harvard 2003) (describing republican government and deliberation as a way to filter citizens' desires and produce policies for the pubhc good);
49. Joseph M. Bessette, The Mild Voice of Reason: Deliberative Democracy and American National Government 150-81 (Chicago 1994) (emphasizing the importance of deliberation in Congress).
50. See Keith Krehbiel, Information and Legislative Organization 254-57 (Michigan 1991) (arguing that committee power is informational, not distributive).
51. For an overview of the deliberative privilege doctrine, see generally Michael N. Kennedy, Comment, Escaping the Fishbowl: A Proposal to Fortify the Deliberative Process Privilege, 99 Nw U L Rev 1769, 1769-72 (2005).
52. See Cass R. Sunstein, Minimalism at War, 2004 S Ct Rev 47, 69-72 (arguing that deliberative processes within a unified branch, such as the executive, will result in "group polarization, through which like-minded people often go to unjustified extremes").
53. See generally Sean Gailmard, Multiple Principals and Outside Information in Bureaucratic Policy Making (University of Chicago Harris School Working Paper Series, Dec 2002), online at http://harrisschool.uchicago. edu/About/publications/working-papers/pdf/wp_02_13.pdf (visited Apr 20, 2007) (explaining that a high number of principals causes a suboptimal level of joint utility from oversight).
54. See Levinson, 118 Harv L Rev at 926-29 (cited in note 4) ("Basic collective action theory suggests that government officials will often forego opportunities to build their institutions into empires and instead focus their efforts on increasing their own personal clout within existing institutional boundaries.").
55. Daryl J. Levinson and Richard H. Pildes, Separation of Parties, Not Powers, 119 Harv L Rev 2311, 2312-16 (2006) (positing that the separation of powers must be seen through "the lens of party competition").
56. See, for example, Gary W. Cox and Mathew D. McCubbins, Legislative Leviathan Revisited: Responsible Party Government in the US House of Representatives 7 (2003), online at http://www.iq.harvard.edu/NewsEvents/ Conferences/EWA/Jan04/LLR-Harvard_final.pdf (visited Apr 20, 2007) (describing scholarly disagreement over the effect of political parties on the legislative process).
57. See Bruce Ackerman, The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy 5, 18, 24-25 (Belknap 2005) (arguing that Madison "linked party with faction and condemned it as evil," failing to see the necessity of two-party competition in modern democracy).
58. See Levinson and Pildes, 119 Harv L Rev at 2342-47 (cited in note 47) (contending that while intragovernmental accountability will be less effective with single-party leadership, electoral accountability will increase as voters can hold one party responsible for government actions).
59. See David Epstein and Sharyn O'Halloran, Delegating Powers: A Transaction Cost Politics Approach to Policy Making under Separate Powers 235 (Cambridge 1999) ("Congress gives less discretionary authority to executive agencies controlled by the opposite party, reducing agencies' latitude and flexibility when making regulatory policy.").
60. See Levinson and Pildes, 119 Harv L Rev at 2342-47 (cited in note 47) (arguing that voters cannot count on "the kind of checks and balances driven by political 'ambition . . . counteract[ing] ambition'" when the government is unified) (omission and alteration in original).
61. 5 USC § 2954 (2000 & Supp 2004) (allowing any seven members of the House Committee on Government Operations or any five members of the Senate Committee on Homeland Security and Governmental Affairs to request any information from an executive agency relating to the jurisdiction of their committee).
62. See Krehbiel, Information and Legislative Organization at 68-69, 74-75 (cited in note 42) (noting that committees have information power due to specialization and expertise coupled with efficient sharing of information with the legislative body as a whole).
63. See Mathew D. McCubbins and Thomas Schwartz, Congressional Oversight Overlooked: Police Patrols versus Fire Alarms, 28 Am J Polit Sci 165-66, 173 (1984) (advocating for a theory of congressional oversight that relies on individuals and interest groups to bring complaints against executive agencies to Congress).
64. United States Office of Personnel Management, Employment and Trends, Table 14 - Federal Civilian Employment by Branch, Selected Agency, Pay System and Area, December 2005 and January 2006 (Jan 2006), online at http://www.opm.gov/feddata/html/2006/january/tablel4.asp (visited Apr 20, 2006).
65. See id (breaking down federal civilian employment by branch and department).
66. See United States Department of Labor, Bureau of Labor Statistics, Job Opportunities in the Armed Forces, in Occupational Outlook Handbook, 2006-07 Edition, online at http://www.bls.gov/oco/ocos249.htm (visited Apr 20, 2007) (listing military active duty personnel for 2005).
67. Compare Barry R. Weingast and Mark J. Moran, Bureaucratic Discretion or Congressional Control? Regulatory Policymaking by the Federal Trade Commission, 91 J Polit Econ 765, 788, 792 (1983) (finding that Congress controls agencies by applying the congressional dominance theory to the FTC),
68. with Terry M. Moe, An Assessment of the Positive Theory of "Congressional Dominance," 12 Legis Stud Q 475, 476-77, 514 (1987) (criticizing the congressional dominance theory for being "unsuited to the analysis of bureaucratic behavior" and denying the empirical validity of the FTC analysis);
69. Jonathan Bendor and Terry M. Moe, Agenda Control, Committee Capture, and the Dynamics of Institutional Politics, 80 Am Polit Sci Rev 1187, 1202-03 (1986) (finding that agenda control is less powerful than believed and encouraging scholars to "move toward broader models of institutional politics").
70. See Neil K. Komesar, Imperfect Alternatives: Choosing Institutions in Law, Economics, and Public Policy 141-42 (Chicago 1994) ("[I]nsulation separates judges from a great deal of information about the desires and needs of the public").
71. For courts' recent treatment of the state secrets privilege, see Tenet v Doe, 544 US 1, 8-11 (2005) (barring respondents' suit under the Totten rule, which "precludes judicial review in cases . . . where success depends upon the existence of [the plaintiff's] secret espionage relationship with the Government"); Sterling v Tenet, 416 F3d 338, 347 (4th Cir 2005) (affirming the dismissal of an employment discrimination suit against the CIA under the state secrets doctrine); McDonnell Douglas Corp v United States, 323 F3d 1006, 1020 (Fed Cir 2003) (affirming the rejection of a defense that would have required substantial discovery into matters protected under military and state secrets privilege).
72. For more extensive treatment of these points, see Adrian Vermeule, The Judiciary is a They, Not an It: Interpretive Theory and the Fallacy of Division, 14 J Contemp Legal Issues 549, 566 (2005) (arguing that one consequence of the judiciary's decentralization and heterogeneity is the lack of a "steady judicial policy of democracy-forcing or information-eliciting interpretation").
73. See Bush v Gore, 531 US 98, 110-11 (2000) (per curiam) (barring the Florida manual recount for the 2000 presidential election, thereby guaranteeing Bush's victory). See also Guido Calabresi, In Partial (but not Partisan) Praise of Principle, in Bruce Ackerman, ed, Bush v. Gore: The Question of Legitimacy 67, 81-83 (Yale 2002) ("[Bush v Gore] was bad, not because its result was necessarily wrong but because it was unprincipled.").
74. See Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 Harv L Rev 1787, 1795 (2005) (defining sociological legitimacy as a situation where "the relevant public regards [an institution] as justified, appropriate, or otherwise deserving of support for reasons beyond fear of sanctions or mere hope for personal reward").
75. The Gallup Organization reports generally increasing numbers of people claiming that they had a "great deal" of trust in the Supreme Court from the time of Watergate (17 percent in 1974) to just before Bush v Gore (29 percent in 1999 and 23 percent in 2000). Since Bush v Gore, that number has dropped, staying at or below immediate post-Watergate trust ratings (averaging just over 15 percent since 2001). The Gallup Organization, Gallup Brain, Topics & Trends, Supreme Court (updated Sep 14, 2006), online at http://brain.gallup.com/content/?ci=4732 (subscription required) (visited Apr 20, 2007) (reporting public opinion trends related to the Supreme Court).
76. See Thomas J. Miles and Cass R. Sunstein, Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron, 73 U Chi L Rev 823, 827 (2006) (citing empirical evidence to support the conclusion that "application of the Chevron framework, and hence the meaning of federal regulatory law, shows a significant effect from the political beliefs of federal judges");
77. Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited 372-76 (Cambridge 2002) (finding that Chief Justices Burger and Rehnquist were more likely to assign opinions to ideologically similar justices).
78. Lincoln's successful repudiation of Justice Taney's habeas order is the supreme example. See Harold M. Hyman, Abraham Lincoln, in Kermit L. Hall, James W. Ely, Jr., and Joel B. Grossman, eds, The Oxford Companion to the Supreme Court of the United States 584, 584 (Oxford 2d ed 2005) (describing the wide acceptance of Lincoln's rejection of Taney's opinion in Ex parte Merryman, 17 F Cases 144 (Cir Ct Md 1861), as a legitimate exercise of his war powers). Another possible example is President Jackson's disavowal of a Supreme Court decision concerning the treatment of the Cherokees.
79. See Kermit L. Hall, Andrew Jackson, in Hall, Ely, and Grossman, eds, The Oxford Companion to the Supreme Court 511, 511 (noting that Jackson did not step in when Georgia disregarded the Supreme Court's order in Worcester v Georgia, 31 US (6 Peters) 515 (1832), although denying that Jackson said "John Marshall has made his decision, now let him enforce it").
80. Youngstown Sheet & Tube Co v Sawyer, 343 US 579, 588-89 (1952) (invalidating as unconstitutional President Truman's order to seize US steel mills to avert a nationwide strike during the Korean War).
81. New York Times Co v United States, 403 US 713, 719-20 (1971) (Black concurring) (declaring that the president cannot "wipe out the First Amendment" by enjoining the publication of the Pentagon Papers in the name of national security).
82. Hamdan v Rumsfeld, 126 S Ct 2749, 2772-75 (2006) (emphasizing that the president has no "sweeping mandate" to "invoke military commissions when he deems them necessary") (internal quotation marks omitted).
83. For an extended treatment of this claim, see generally Eric A. Posner and Adrian Vermeule, Terror in the Balance: Security, Liberty, and the Courts (Oxford 2007) (arguing that judicial and legislative deference to the executive during emergencies is the historical norm).
84. See Jon Elster, Ulysses and the Sirens: Studies in Rationality and Irrationality 90-96 (Cambridge 1979) (describing certain features of modern constitutional democracies - including central banks and foreign ministries - as precommitments intended to foster stable institutional frameworks and to prevent despotism).
85. For criticisms, see Jon Elster, Ulysses Unbound: Studies in Rationality, Precommitment, and Constraints 156-74 (Cambridge 2000) (noting that constitutional precommitment may not be feasible, effective, or desirable and contesting such a precommitment on conceptual, causal, and normative grounds);
86. Jeremy Waldron, Precommitment and Disagreement, in Larry Alexander, ed, Constitutionalism: Philosophical Foundations 271, 285-95 (Cambridge 1998) (maintaining that constitutional constraints are not analogous to self-binding by individuals because the constituents of a political body cannot unanimously agree which constraints are desirable).
87. A somewhat analogous argument can be found in Daniel A. Farber, Rights as Signals, 31 J Legal Stud 83, 88-91 (2002) (arguing that governments, not presidents, adopt judicially enforceable constitutional rights in order to signal that they value payoffs in the future, and thus will not drive off foreign investment in the long run by expropriating in the short run).
88. For example, compare a president who appoints a commission, waits for its recommendation, and then acts, with a president who promises to appoint a commission, acts, and then receives its evaluation of his action. The first president does not engage in self-binding; he simply gains credibility prior to action (assuming that the commission supports him). The second president does engage in self-binding, and thus the mechanism works only if the president can be sanctioned if the commission criticizes his action. We will not belabor these details, except to note that the strict liability mechanism depends heavily on successful self-binding. See Part IV.B.7.
89. See United States v Nixon, 418 US 683, 694-96 (1974) ("So long as this regulation [providing for a special prosecutor] remains in force the Executive Branch is bound by it, and indeed the United States as the sovereign composed of the three branches is bound to respect and to enforce it."); Arizona Grocery Co v Atchison, Topeka & Santa Fe Railway Co, 284 US 370, 385-89 (1932) ("[The Interstate Commerce Commission] was bound to recognize the validity of the rule of conduct prescribed by it and not to repeal its own enactment with retroactive effect."). However, the Court has also said that for purposes of enforcing the constitutional "nondelegation doctrine," it is unimportant that an administrative agency has promulgated rules that channel its own discretion, even though such rules are binding on the agency unless and until changed. See Whitman v American Trucking Associations, Inc, 531 US 457, 472-76 (2001) ("We have never suggested that an agency can cure an unlawful delegation of legislative power by adopting in its discretion a limiting construction of the statute.").
90. In fact, the independent counsel who investigated Nixon were appointed under Department of Justice regulations, which Nixon did not overturn. The regulations emerged from complicated background negotiations between Nixon, Attorney General Elliott Richardson, Chief of Staff Alexander Haig, and various Senators. See K.A. McNeely-Johnson, Comment, United States v. Nixon, Twenty Years After: The Good, the Bad and the Ugly - An Exploration of Executive Privilege, 14 NIU L Rev 251, 265-68 (1993) (describing the conditions of employment for Special Prosecutors Archibald Cox and Leon Jaworski). We offer a stylized version of the case to illustrate the point more cleanly.
91. Neal Kumar Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 Yale L J 2314, 2316 (2006) (advocating a system of checks and balances within the executive branch in light of "legislative abdication [as] the modus operandi").
92. Id at 2324-42 (suggesting mechanisms to strengthen bureaucracy in order to create checks and balances within the executive branch).
93. See R.G. Lipsey and R.K. Lancaster, The General Theory of Second Best, 24 Rev Econ Stud 11, 12 (1956-1957) ("[I]t is not true that a situation in which more, but not all, of the optimum conditions are fulfilled is necessarily, or is even likely to be, superior to a situation in which fewer are fulfilled.").
94. For an introduction to this class of problems, see Adrian Vermeule, Self-Defeating Proposals: Ackerman on Emergency Powers, 75 Fordham L Rev 631, 636-40 (2006) (describing self-defeating proposals as proposals "whose diagnosis and prescription make inconsistent assumptions about agents' desires, beliefs or opportunities").
95. See Katyal, 115 Yale L J at 2319-22 (cited in note 78) (characterizing the president as seeking executive power without legislative checks after September 11, 2001).
96. Prominent commissions include the President's Commission on the Assassination of President Kennedy (the Warren Commission) and President Johnson's National Advisory Commission on Civil Disorder (the Kerner Commission), which reported on urban riots. For analysis of recent independent commissions, and for a sample of the diversity of issues covered by independent commissions, see, for example, Victoria S. Shabo, Recent Development, "We Are Pleased to Report that the Commission has Reached Agreement with the White House": The 9/11 Commission and Implications for Legislative-Executive Information Sharing, 83 NC L Rev 1037, 1037-51 (2005) (describing the history and significance of the 9/11 Commission as a designated legislative body);
97. Ken Gish and Eric Laschever, The President's Ocean Commission: Progress Toward a New Ocean Policy, 19 Natural Resources & Envir 17, 17-18 (Summer 2004) (extolling the importance of the United States Commission on Ocean Policy);
98. Nkechi Taifa, Codification or Castration? The Applicability of the International Convention to Eliminate All Forms of Racial Discrimination to the U.S. Criminal Justice System, 40 Howard L J 641, 660-64 (1997) (criticizing Congress for failing to follow the 1995 United States Sentencing Commission's recommendations regarding crack cocaine and powder cocaine sentencing disparities).
99. See generally Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction, Report to the President of the United States (Mar 31, 2005), online at http://www.wmd.gov/report/index.html (visited Apr 20, 2007) (reporting on US intelligence agencies' mistaken assessment of Iraq's WMD capability and recommending reforms to avoid future errors).
100. For models suggesting that a president can make credible commitments to the future direction of agency policy by appointing officials whose preferences are known to differ from the president's, see Nolan McCarty, The Appointments Dilemma, 48 Am J Polit Sci 413, 418-21 (2004) (inferring that legislatures grant more discretion to agencies when the executive makes moderate appointments);
101. Daniel F. Spulber and David Besanko, Delegation, Commitment, and the Regulatory Mandate, 8 J L, Econ, & Org 126, 133-37 (1992) (positing that the president is able to make commitments through the appointment of administrators with divergent preferences).
102. See McCarty, 48 Am J Polit Sci at 422 (cited in note 85) (suggesting that greater congressional participation in appointments would help resolve the "appointments dilemma" - the agency problem that arises because the President holds appointment power, yet Congress determines how much discretion administrative agencies may exercise).
103. See id at 423 ("[Restrictions on the removal of agency officials] increase the ability of presidents to commit not to politicize the agency either through replacements or threats of removal."). The implication is that "the agencies that should be the most insulated from the presidential control are those whose activities the president supports more than does Congress" Id at 424. For an empirical overview of independent agencies, see generally David E. Lewis, Presidents and the Politics of Agency Design: Political Insulation in the United States Government Bureaucracy, 1946-1997 (Stanford 2003) (examining agency design as a product of - and source of insight into - American politics).
104. See Part I.A.
105. See generally Sunstein, Why Societies Need Dissent (cited in note 41) (discussing forms of harmful groupthink in deliberating bodies).
106. See Donald Wittman, The Constitution as an Optimal Social Contract: A Transaction Cost Analysis of The Federalist Papers, in Bernard Grofman and Donald Wittman, eds, The Federalist Papers and the New Institutionalism 73, 73-79 (Agathon 1989) (arguing that when transaction costs are low, political actors can bargain around the separation of powers).
107. See Alex Cukierman and Mariano Tommasi, When Does it Take a Nixon to Go to China?, 88 Am Econ Rev 180, 190-92 (1998) (finding that left-wing policymakers are more credible than right-wing policymakers when endorsing a right-wing policy - and vice versa - and that a policymaker proposing an extreme policy shift enjoys more credibility when the shift diverges from his known political orientation);
108. Robert E. Goodin, Voting through the Looking Glass, 77 Am Polit Sci Rev 420, 427-28 (1983) ("Voting left when you want right, perverse though it may seem, sometimes may prove instrumentally rational in an uncertain world where politicians' possibilities vary inversely with their declared positions.").
109. For a rigorous analysis of this phenomenon in the context of cheap talk games, see, for example, David Austen-Smith, Strategic Models of Talk in Political Decision Making, 13 Intl Polit Sci Rev 45, 57 (1992) (theorizing that political speeches have influential power only insofar as they alter listeners' perception of the consequences likely to result from a given political action);
110. Joseph Farrell and Robert Gibbons, Cheap Talk with Two Audiences, 79 Am Econ Rev 1214, 1214-15 (1989) (using a cheap talk model to explain why some messages may be more credible when made in public).
111. However, there is a puzzling finding that the counterpartisanship effect is asymmetrical: in experiments, hawkish "voters" approved of dovish policies chosen by a hawkish "president," but dovish voters did not approve of hawkish policies chosen by a dovish president. See Lee Sigelman and Carol K. Sigelman, Shattered Expectations: Public Responses to "Out-of-Character" Presidential Actions, 8 Polit Beh 262, 274-76 (1986).
112. John Ferejohn suggests, with a model, that agents might compete by offering their principals transparency, which lowers the costs to the principals of monitoring the agents, and thereby induces the principals to offer the agents greater discretion. See John Ferejohn, Accountability and Authority: Toward a Theory of Political Accountability, in Przeworski, Stokes, and Manin, eds, Democracy, Accountability, and Representation 131, 140-49 (cited in note 35) (suggesting that increased transparency would stimulate greater citizen investment in government, and would consequently lead to government expansion). Empirically, the only relevant study of which we are aware offers only mixed support for this model.
113. See James E. Alt, David Dreyer Lassen, and Shanna Rose, The Causes of Fiscal Transparency: Evidence from the American States 25-30 (University of Copenhagen, Department of Economics, Economic Policy Research Unit (EPRU) Working Paper No 06-02, Feb 2006), online at http://www.econ.ku.dk/eprn_epru/ Workings_Papers/wp-06-02.pdf (visited Apr 20, 2007) (finding that political competition and fiscal imbalance affect transparency, but cautioning that some of the apparent causes of transparency could be "spurious consequences of other trending series").
114. See Murray Waas, Libby Says Bush Authorized Leaks, National Journal (National Journal Group Apr 06, 2006), online at http://nationaljournal. com/about/njweekly/stories/2006/0406nj1.htm (visited Apr 20, 2007) ("[Vice President Cheney's former chief of staff I. Lewis] Libby [ ] claimed that President Bush authorized Libby to speak to and provide classified information to Washington Post assistant managing editor Bob Woodward for "Plan of Attack," a book written by Woodward about the run-up to the Iraqi war.") (internal formatting omitted).
115. See Simone Chambers, Behind Closed Doors: Publicity, Secrecy, and the Quality of Deliberation, 12 J Polit Phil 389, 390-98 (2004) (describing how the quality of deliberation suffers "under the glare of publicity," and giving examples of settings where private deliberation better fosters accountability").
116. See also Jon Elster, Arguing and Bargaining in Two Constituent Assemblies, 2 U Pa J Const L 345, 410-11 (2000) (noting the advantages of secret deliberation at the Constitutional Convention).
117. Compare Bob Woodward (blaming former CIA director George Tenet) and Ron Suskind (blaming George W. Bush) on responsibility for the Iraq intelligence failure. Tenet was Suskind's main source; Bush, among others, was Woodward's. See Ron Suskind, The One Percent Doctrine: Deep Inside America's Pursuit of Its Enemies Since 9/11 341-45 (Simon & Schuster 2006) (citing Tenet as a source and blaming the White House for the WMD intelligence failure);
118. Bob Woodward, Plan of Attack X-XI, 437-40 (Simon & Schuster 2004) (noting that President Bush was one of his sources and blaming Tenet for the WMD intelligence failure).
119. See Part IV.C.
120. See Part I.C.
121. See Part I.D.
122. See UN Charter Art 27 (providing that Security Council action on other than procedural matters will require the unanimous agreement of all permanent members). See also Provisional Rules of Procedure of the Security Council, UN Security Council, 2410th mtg (Dec 21, 1982), UN Doc S/96 Rev 7 (establishing explicit rules governing Security Council proceedings, leadership, and membership), online at http://www.un.org/Docs/sc/scrules.htm (visited Apr 20, 2007). Rule 40 of the Provisional Rules provides that the United Nations Charter governs voting in the Security Council.
123. See Resolution 82, UN Security Council, 473d mtg (June 25, 1950), UN Doc S/1501 (calling for North Korea to withdraw and calling upon "all Member States to render every assistance to the United Nations in the execution of this resolution");
124. Resolution 83, UN Security Council, 474th mtg (June 27, 1950), UN Doc S/1511 (recommending that member nations "furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore international peace and security in the area").
125. See Eugene Robinson, An Easy Call: Lying, Wash Post A21 (May 12, 2006) (chastising the Bush administration for collecting phone records on "tens of millions of Americans" after claiming that his program only targeted parties suspected of terrorist involvement calling overseas).
126. Id (accusing President Bush of lying about the depth of his "terrorist surveillance program").