I Background, 5 Constitutional Failure Revisited

In the wake of the 9/11 attacks on the United States, then-president George W. Bush made expansive use of “executive prerogative,” a practice that constitutional lawyers Eric A. Posner and Adrian Vermeule characterized as an “executive unbound.” The modern administrative state, they argued, suffers from a severe case of liberalism, “which holds that representative legislatures govern and should govern, subject to constitutional constraints, while executive and judicial officials carry out the law.”1 Because liberals are afraid of executive powers, especially those...