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.”
Vermeule rejects this “precautionary” model of constitutionalism, in which drafters of laws or constitutions seek to avoid altogether “worst-case” risks such as dictatorship. 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.”
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.”
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.
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.
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. Rather, Vermeule 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.
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. In a 2013 decision, the U.S. Circuit Court of Appeals for the D.C. Circuit narrowly interpreted the president’s power to make recess appointments during a session of Congress.
But 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. And, he argues the holding might actually turn out to be “perverse,” by increasing the risk of presidential aggrandizement in the future.
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.”
In the context of recess appointments, Vermeule 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 these appointments to the Adjournments Clause and saying that an adjournment longer than three days counts as a recess.
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 matters of government, we never have scientific precision, and anyone who tells you otherwise is trying to put one over on you,” Vermeule says. “There’s a lot of false technocratic precision with respect to constitutional decision-making. 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.”
Eric 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 adapts to a new setting HLS Professor Cass Sunstein’s (’78) writing about the precautionary principle in the area of regulation.
“The precautionary principle makes little sense on its own terms since there are always risks on all sides, and leads to pretty unattractive outcomes even when it can be applied,” Posner wrote in a post on his blog. “It’s as if we should all stay in our basements rather than take the risk that flower pot will fall on our heads if we go outside.”