![]() ![]() (In this respect, Vermeule crosses the boundary between public and regulatory law, where the principle began.) “In matters of government, we never have scientific precision, and anyone who tells you otherwise is trying to put one over on you.”Įric Posner ’91, a professor at the University of Chicago Law School, who co-wrote a 2011 book with Vermeule on presidential authority, says Vermeule’s latest book makes the “striking” claim that “much traditional constitutional thinking and doctrine has a precautionary-principle cast to it.” In this regard, the book inventively draws on constitutional design analysis of the precautionary principle explored elsewhere, such as in the work of HLS Professor Cass Sunstein ’78 in the context of regulating health, safety and business risks. I think we can’t do much better than to take a bunch of people who otherwise have sound judgment and get them to express their views and then more or less average their views.”Ĭredit: Martha StewartIn general, says Adrian Vermeule, he didn’t set out to write specific rules and he doesn’t think he-or anyone else-can quantify optimized solutions. “There’s a lot of false technocratic precision with respect to constitutional decision-making. “In matters of government, we never have scientific precision, and anyone who tells you otherwise is trying to put one over on you,” he says. In general, Vermeule says, he didn’t set out to write specific rules and he doesn’t think he-or anyone else-can quantify optimized solutions. In the context of recess appointments, he writes that an optimal solution might be establishing a fixed range of days during which a president can make a recess appointment based on historical practice or tying the appointments to the Adjournments Clause and saying that an adjournment longer than three days counts as a recess. If the Senate continues to be “obstreperous” about appointments, Vermeule says, “the risk is there is so much pent-up frustration about stoppages, that the president offers a more radical reinterpretation that removes the checks altogether.” And, he argues the holding might actually turn out to be “perverse,” by increasing the risk of presidential aggrandizement in the future. Circuit narrowly interpreted the president’s power to make recess appointments during a session of Congress.īut Vermeule says too narrow an interpretation of the recess appointment, designed as a precaution against the risk of presidential aggrandizement or of despotism, makes it more likely that important offices will go unfilled. Throughout the book, Vermeule explores the recent controversy over recess appointments by President Barack Obama ’91 of executive branch nominees previously blocked in the Senate. Rather, he says he focused on “higher-order risks” arising from institutional failure, which he explores in contexts ranging from separation of powers and the structure of government to free speech and reasonable doubt in criminal law.Ĭlick here to view a panel discussion on Adrian Vermeule%SQUOTE%s %SQUOTE%The Constitution of Risk.%SQUOTE% ![]() In his latest book, Vermeule says, he chose to put aside “first-order risks” addressed by health, environmental or consumer product regulation by administrative agencies. He says “The Constitution of Risk” is part of the “same broad stream of research” as his last book, “The System of the Constitution,” in which he also tried to take a “systemic or holistic” approach to thinking about constitutional change. Some official misconduct or corruption may be “the unavoidable byproduct of a regime that optimizes the net overall risks of action and inaction, of abuses and neglect, on the part of both officials and powerful nongovernmental actors,” Vermeule writes. Instead, he argues that the better approach is an “optimizing” model in which all potential risks are taken into account “without becoming obsessively focused on one particular risk.” The precautionary model assumes that if it’s possible for officials to abuse their powers, then “constitutional rulemakers should act as if those officials will be certain to do so.” Vermeule rejects this “precautionary” model of constitutionalism, in which drafters of laws or constitutions seek to avoid altogether “worst-case” risks such as dictatorship. ![]() When writing laws, trying to prevent official abuse can actually create or exacerbate the very risks they are intended to avoid, argues Professor Adrian Vermeule ’93 in his new book, “The Constitution of Risk.”
0 Comments
Leave a Reply. |
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |