Executive Authority in a post-Westphalian World: How Global Trends Influence U.S. Separation of Powers

Crosspost from Balkinization

The rise of Executive power in the post-9/11 era can be attributed to many things.  Chief among them are strident assertions of unfettered Article II powers during times of crisis,[1] the legislative flurry to satisfy the President’s wish list in the aftermath of the terrorist attacks,[2] and the notion that combating al Qaeda requires working on the so-called “dark side” of the law.[3]

At the end of the day, though, what might change the constitutional landscape in terms of Executive authority and separation of powers more than anything else are the dynamic, organic trends toward greater globalization, liberalization of political economies, and technological revolution.  These trends deemphasize national boundaries, enable non-statist transnational connections, and promote markets over bureaucracies – and thus they are often thought to erode state authority and empower non-state actors, including al Qaeda.[4]

Of late, the Executive has itself adapted to these trends and seized upon opportunities created by these movements to aggrandize power vis-à-vis the courts and Congress, patterning many of its national-security initiatives on more fluid and unconventional arrangements.  Its selective harnessing of these fluid arrangements and identities has enabled our military, intelligence, and homeland security officials to operate in the less regulated interstices of the national and international legal grid.  This grid is currently calibrated to the statist, Westphalian system where national governments monopolize the use of force, and conflict is between nation-states and understood in terms of defending clearly defined national boundaries.[5]