Monday, November 17, 2008
Eric Posner and Adrian Vermeule posted their paper Crisis Government in the Administrative State: 9/11 and the Financial Meltdown of 2008 on ssrn on Friday. The authors compare administration and Congressional "crisis governance" and "emergency lawmaking" in response to 9/11 and the current financial crisis. They argue that Congressional delegation of power to the executive is best explained with reference to Carl Schmitt (arguing for executive powers over legislative powers to deal with emergencies), not James Madison; and that the Bush administration's less aggressive response to the financial crisis (compared to its response to 9/11) reflects its loss of popularity and credibility.
This article is a nice primer on Schmitt--perhaps an under-appreciated scholar in discussions of executive authority in law school classes--in the context of two relatively recent crises. It's also a useful study of the interplay between politics and constitutional law in assertions and exercises of executive power.