I Precautionary Constitutionalism In the regulation of financial, environmental, health, and safety risks, "precautionary principles" state, in their most stringent form, that new instruments, technologies, and policies should be rejected unless and until they can be shown to be safe.1 Examples include requirements that new drugs pass stringent tests of safety before they are licensed for sale; requirements that nuclear power plants pass stringent tests of design safety before coming into operation; and the Bush administration's "one percent" doctrine, which held that even a miniscule risk of terrorism warranted precautionary countermeasures.2 Such principles come in many shapes and sizes, and with varying degrees of strength, but the common theme is to place the burden of uncertainty on proponents of potentially unsafe technologies and policies. Critics of precautionary principles urge that the status quo itself carries risks, either on the very same margins that concern the advocates of such principles or else on different margins; more generally, the costs of such principles may outweigh the benefits. Although this debate is a relatively new one in the theory of regulation, it is a venerable one in constitutional law debates about second-order 1 See, e.g., Peter L. deFur, The Precautionary Principle: Application to Polices Regarding En docrine-Disrupting Ch emicals, in Protecting Public Health and the Environment: Implementing the Precautionary Principle 337, 345-46 (Carolyn Raffensperger & Joel Tickner eds., 1999) ("As described in the Wingspread Statement on the Precautionary Principle, the applicant or proponent of an activity or process or chemical needs to demonstrate to the satisfaction of the public and the regulatory community that the environment and public health will be safe."). For an overview of the massive literature on precautionary principles in various regulatory domains, see Implementing the Precautionary Principle: Perspectives and Prospects (Elizabeth Fisher et al. eds., 2006). 2 See Ron Suskind, The One Percent Doctrine: Deep Inside America's Pursuit of Its Enemies Since 9/1 i (2006) ("If there's a 1% chance that Pakistani scientists are helping al Qaeda build or develop a nuclear weapon, we have to treat it as a certainty in terms of our response." (quoting former Vice President Richard Cheney)). 27 28 Part I. Theory political risks, or so I will claim. At the wholesale level, many theorists defend a master principle according to which constitutions should be designed to take precautions against political risks arising from the design of institutions and the allocation of power among officials. At the retail level, many constitutional rules and structures have been justified as precautions against the risk of abuse of power by incumbent officials or other constitutional actors, the risk of tyrannous majorities, or other political pathologies. Although later chapters will critique precautionary justifications for constitutional rules, the aim of this one is to reconstruct such arguments in charitable terms, in order to put them in their best possible light. PRECAUTIONARY PRINCIPLES AND POLITICAL RISKS In the domain of risk regulation, precautionary principles come in many different forms. One count shows no less than nineteen versions of "the precautionary principle"3 - or nineteen different precautionary principles, related only by a vague family resemblance. As we will see, constitutional precautionary principles are equally heterogeneous. The principal dimensions of variation include the following: Scope. To what political risks does the principle apply? The leading ones I will discuss are "abuse of power" or self-dealing by officials, "tyranny" in the sense of legislative4 or executive dictatorship,5 majoritarian oppression,6 minoritarian oppression, the death of federalism or the abolition of the states,7 and various forms of biased policymaking by agencies and biased judging. All these have the second-order character that is the hallmark of political risks; they arise from particular allocations of decision-making power across officials and institutions. Weight. How strong is the principle within its scope? What sort of showing or what sort of reasons suffice to defeat it? Jonathan B. Wiener, Precaution in a Multirisk World, in Human and Ecological Risk Assessment: Theory and Practice 1509,1513 (Dennis J. Paustenbach ed., 2002) (citing Per Sandin, Dimensions of the Precautionary Principle, 5 Hum. Ecol. Risk Assess. 889 (1999)). See The Federalist No. 47, at 300-08 (James Madison) (Clinton Rossiter ed., 1961). See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,650-53 (1952). See United States v. Carolene Prods. Co., 304 U.S. 144,152 n.4 (1938). See Brutus XV, in 2 The Complete Anti-Federalist 437, 437-42 (Herbert J. Storing ed., 1981). Precautionary Constitutionalism 29 Timing. "When does the constitutional rule intervene to ward off an uncertain threat? How far in the future must or may the threat arise? Justification. "Why should there be ex ante precautions at all, as opposed to ex post remedies? Overall, in both regulatory and constitutional domains, it is best to envision a continuum of precautionary principles, varying both in their stringency and in the timing of their application.8 "On these sliding-scale dimensions, regulation is more 'precautionary' when it intervenes earlier and/or more stringently to prevent uncertain future adverse consequences."9 In the weakest form, precautionary principles may be cast as mere considerations, tiebreakers, or easily rebuttable presumptions, but we will see that constitutional actors have often argued for much stronger versions of precautionary measures against political risks. The inherent messiness of the subject creates a dilemma about what to include. Constitutional arguments offered by framers and other constitutional actors may appear precautionary, in some broad sense, but those actors are not decision theorists or game theorists and they rarely specify the precautionary principle that underlies the argument, or whether the constitutional rules at issue might instead be justifiable on nonprecaution-ary grounds. I have opted to lump before splitting. Rather than narrowing the focus at the outset, I will begin by canvassing a broad range of seemingly precautionary or quasi-precautionary arguments. For ease of exposition, I will arrange the examples along two axes. First, precautionary arguments may be addressed to constitutional designers or else to interpreters of an established constitution. Second, such arguments may be pitched at wholesale, as master principles, or at retail, as justifications for particular constitutional rules and structures. Collating these two distinctions yields four cases, which I will take up in turn. With these in hand, I will distinguish constitutional precautionary principles from some near relations. WHOLESALE PRINCIPLES OF CONSTITUTIONAL DESIGN In his Life of George Washington, John Marshall described a precautionary mindset widespread among Antifederalists of the founding era: "That power might be abused, was, to persons of this opinion, a conclusive argument against its being bestowed; and they seemed firmly persuaded that Wiener, supra note, at 1514. 9 Id. 30 Part I. Theory the cradle of the constitution would be the grave of republican liberty."10 Robert Yates, writing as the Antifederalist pamphleteer Brutus, went so far as to offer "an axiom in politicfs]," to the effect that "the people should never authorize their rulers to do any thing, which if done, would operate to their injury"11 - a principle that, like the maximin criterion, seemingly took no account of the probability of the harm occurring, as opposed to the consequences of its occurrence. Brutus in effect offered a precautionary master principle of constitutional design aiming to preclude even the possibility that constitutional power would be abused. The most obvious predecessor, and perhaps ancestor, of this approach was David Hume's maxim that "in contriving any system of government, and fixing the several checks and controls of the constitution, every man ought to be supposed a knave, and to have no other end, in all his actions, than private interest."12 Hume's "knavery principle" is best understood not as a factual claim that all men are so motivated, but rather a claim that constitutional design will work best if all men are presumed to be so motivated. Later theorists have advanced a cluster of justifications for a presumption of that sort; for our purposes, most relevant is the idea that the knavery principle represents a kind of "precautionary exercise"13 that is useful for constitutional designers, despite its counterfactual character. Suppose that each office-holder who is a bad type does damage that outweighs the benefits supplied by an office-holder who is a good type. In a risk model, the designers may decide to act in a risk-averse fashion, discounting their estimate of the probability that good types will hold power by the disproportionate harm that bad types inflict.14 Alternatively, suppose that the designers face genuine uncertainty about the proportion of knaves in the pool of potential office-holders, a question on which they simply have no epistemically justified estimate of probabilities. The designers may then do best to maximize the minimum payoff from constitutional arrangements by supposing that all office-holders will be bad types, and by 10 5 John Marshall, The Life of George Washington: Commander in Chief of the American Forces, during the War which Established the Independence of His Country, and First President of the United States 131 (Philadelphia, CP Wayne 1807) (emphasis added). 11 Brutus VIII, in 2 The Complete Anti-Federalist, supra note, at 405,406. 12 David Hume, Of the Independency of Parliament, in 1 Essays and Treatises on Several Subjects 37, 37 (London, A. Millar 1764) (emphasis omitted). 13 Geoffrey Brennan & James M. Buchanan, The Reason of Rules: Constitutional Political Economy 52 (1985). 14 See id. at 54-59. Precautionary Constitutionalism 3i adopting rules designed above all to preclude the harms of the worst-case scenario - a type of maximin constitutionalism. RETAIL PRINCIPLES OF CONSTITUTIONAL DESIGN At the retail level, many rules and structures of the Constitution of 1787 were designed and chosen on explicitly precautionary grounds. At the Philadelphia convention and in the subsequent debates over ratification, both Federalists and Antifederalists often cast their arguments in precautionary terms: In the Virginia debates, Henry Lee correctly observed that "the opposition continually objected to possibilities with no consideration of probabilities." Madison, too, objected to the supposition that "the general legislature will do every thing mischievous they possibly can." At the same time, in the Pennsylvania debates James Wilson defended the document by claiming that "we were obliged to guard even against possibilities, as well as probabilities."15 This tendency to treat worst-case political possibilities as though they are certain to occur is, in effect, the maximin approach to constitutionalism. The unitary executive. At the Convention, a main thread in the debate over a unitary executive centered on the question whether a unitary or multiple executive was a better precaution against the risk of despotism. On the one hand, Edmund Randolph "strenuously opposed a unity in the Executive magistracy. He regarded it as the foetus of monarchy."16 On the other hand, Wilson argued that "Unity in the Executive instead of being the fetus of Monarchy would be the best safeguard against tyranny."17 Although the two had contrasting views of the merits of the institutional question, the aim of choosing the right precautions against monarchical despotism was common to both. Separation of powers; checks and balances. In a similar vein, Federalists and Antifederalists were united on the view that the separation of powers, and various structures of checks-and-balances, were best justified as precautions against abuse of power. In New York, Melancton Smith put the argument in starkly precautionary form by claiming that "because there 15 Jon Elster, Securities Against Misrule: Juries, Assemblies, Elections 46-47 (2013) (internal citations omitted). 16 1 The Records of the Federal Convention of 1787, at 66 (Max Farrand ed., 1911). 17 Id. 32 Part I. Theory would eventually be corruption in Congress,'[i]t is wise to multiply checks to a greater degree than the present state of things requires.'"18 Even if there is no present problem, in other words, the prudent constitutional designer will take precautions against a risk that is likely to materialize at some unknown future point. For Madison, in Federalist 51, the principal justification for both separation of powers and checks-and-balances was that these mechanisms would serve as "auxiliary precautions": precautions against the concentration of all powers in the hands of the legislative department that were auxiliary to elections (direct or indirect), which were an inadequate safeguard.19 Standing armies and military appropriations. One of the most contentious elements of the proposed constitution, and one of the most difficult points for its supporters to defend, was the explicit grant of power to Congress to "raise and support armies," subject only to the limitation that no military appropriation last longer than two years.20 Picking up a longstanding theme of libertarian argument in English constitutionalism, Antifederalists and others worried about the risk that a standing army would become a tool of despotism, whether monarchical or oligarchic. The general argument was that "the liberties of the people are in danger from a large standing army," either because "the rulers may employ [the army] for the purposes of supporting themselves in any usurpation of power, which they may see proper to exercise," or because of the "great hazard, that any army will subvert the forms of the government, under whose authority, they are raised, and establish one, according to the pleasure of their leader."21 In light of these hazards, Antifederalists criticized the proposed constitution on the ground that it took insufficient precautions. Their preferred alternative was a provision that barred standing armies in times of peace, perhaps with exceptions for minimal garrisons at arsenals and borders, and for raising armies when an imminent threat of foreign invasion appeared.22 The Bill of Rights. More generally, and more successfully, the Antifederalists articulated a theory of constitutional rights as precautions, and criticized the proposed document for its failure to include a bill of rights of the sort that many state constitutions set out. Thus, Brutus found Men of Little Faith: Selected Writings of Cecelia Kenyon 102 (Stanley Elkins, Eric McKitrick & Leo Weinstein eds., 2002). 19 The Federalist No. 51, at 290, 322 (James Madison) (Clinton Rossiter ed., 1961). 20 U.S. Const, art. I, § 8,cl. 12. 21 Brutus X, in 2 The Complete Anti-Federalist, supra note, at 413,413. 22 See the clause proposed in Brutus X, id. at 416. Precautionary Constitutionalism 33 it "astonishing, that this grand security to the rights of the people is not to be found in this Constitution."23 Bills of rights were necessary, he argued, for the "security of life," the "security of liberty," and "for securing the property of the citizens."24 The main political risk against which bills of rights were directed, on the Antifederalist theory, was agency slack - the abuse of power by "rulers" insufficiently constrained by elections or by the constitutional enumeration of governmental powers.25 Because "rulers have the same propensities as other men ... the same reasons which at first induced mankind to associate and institute government," a fear of the predatory impulses of their fellows "will operate to influence them to observe this precaution."26 Presidential power, military power, and emergencies. Retail-level precautionary arguments about constitutional and institutional design are by no means confined to the remote past. I will illustrate by reference to some arguments for institutional precautions against excessive presidential power or excessive military power, or both. A leading proponent of such arguments is Bruce Ackerman, who discerns, in contemporary institutional and political trends, an appreciable possibility of either a presidential or military coup in the American future - possibilities sufficiently grave that Ackerman fears (in the title of one work) "The Decline and Fall of the American Republic."27 This is a kind of a fat-tail problem in politics; although the chance of a presidential or military coup is exceedingly remote, there is an uncertain possibility that it is higher than a normal distribution of risk would indicate, and the resulting harms to constitutionalism would be severe. At the stage of solutions, Ackerman has little faith in the courts, primarily because they are reactive rather than precautionary; courts wait too long to intervene, if they do at all. "Since the Supreme Court won't intervene early enough to check [executive] abuses in the future, the only remaining option is to create a new institutional mechanism that will put a brake on the presidential dynamic before it can gather steam."28 Among the precautionary mechanisms that Ackerman suggests are a "Supreme 23 Brutus II, in 2 The Complete Anti-Federalist, supra note, at 372, 374. 24 Id. at 374-75. 25 See John Francis Mercer, Address to the Members of the Conventions of New York and Virginia, in 5 The Complete Anti-Federalist, supra note, at 102, 105 ("Against the abuse and improper exercise of these sacred powers, the [p]eople have a right to be secured by a sacred Declaration____"). 26 Brutus II, supra note, at 374. 27 Bruce A. Ackerman, The Decline and Fall of the American Republic (2010). Id. at 143. 34 Part I. Theory Executive Tribunal," empowered to issue binding rulings on legal questions internal to the executive branch,29 and a framework statute to govern emergencies, whose central feature would be a "supermajoritarian escalator" - a provision requiring approval of presidential emergency powers by successively larger supermajorities of Congress.30 These and other mechanisms are explicitly pitched as safeguards against pathological political risks of presidential and military power. These are risks in the colloquial sense; Ackerman does not clearly specify whether the "threats" he discerns should be analyzed in a framework of risk or instead a framework of uncertainty. But the precautionary intent is clear. WHOLESALE PRINCIPLES OF CONSTITUTIONAL INTERPRETATION Once a constitution is in place, actors will propose competing master principles of constitutional interpretation. Among the possible principles, some will take a precautionary form, urging that the constitution be "strictly" or "narrowly" construed to prevent political risks. In the history of American constitutionalism, precautionary master principles have taken two main forms: one based on federalism, and the other on individual rights. These two forms are by no means mutually exclusive. Where national regulatory action is at issue, a coalition between libertarians and proponents of states' rights will often form, claiming that precautions against overreaching by the national government protect individual liberty.31 A recent example involves the coalition of libertarians and proponents of states' rights who challenged the constitutional power of Congress to enact an individual mandate to buy health insurance. The Supreme Court upheld the individual mandate as a valid exercise of Congress' taxing powers, but issued dicta - judicial statements not necessary to the result in the case at hand - warning that the mandate may lie beyond Congress' powers to regulate interstate commerce. Part of the Court's commerce analysis invoked the purported risks to individual liberty of expansive congressional power to regulate commercial transactions. If the individual mandate were upheld as a commerce regulation, the Chief Justice claimed in the 9 Id. at 143-52. 30 Id.at 168-69. 31 This is a prominent theme in the jurisprudence of Justice Anthony Kennedy of the U.S. Supreme Court. See, e.g., Bond v. United States, 131 S. Ct. 2355, 2364 (2011) ("By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power."). Precautionary Constitutionalism 35 leading opinion, "Congress could address the diet problem by ordering everyone to buy vegetables."321 will examine the states' rights strand and the libertarian strand separately, but in practice their proponents exploit the interaction between the two for increased rhetorical effect. States' rights precautionary principles. The states' rights precautionary principle advocates strict construction of national powers. The early-nineteenth-century commentator St. George Tucker urged that the Constitution "is to be construed strictly, in all cases where the antecedent rights of a state may be drawn in question."33 The basis of "Tucker's Rule"34 was a mix of consent theory and precaution: [A]s every nation is bound to preserve itself, or, in other words, [its] independence; so no interpretation whereby [its] destruction, or that of the state, which is the same thing, may be hazarded, can be admitted in any case, where it has not, in the most express terms, given [its] consent to such an interpretation.35 Here the political "hazard" is that national power will "destroy" the independence of what Tucker took to be the sovereign and independent nation-states of the American confederation; such states must be strongly presumed to take proper precautions for their own survival, and must therefore be presumed not to chance their own destruction unless their consent to assume such a risk is unmistakable. For Tucker and other early states-rights commentators, the master principle of strict or narrow construction of national powers was embodied in the Tenth Amendment, which provides that" [t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."36 Libertarian precautionary principles. Tucker and other early proponents of states' rights had another string to their bow, however: the Ninth Amendment, rather than the Tenth Amendment. The former provides that "[t]he enumeration in the Constitution of certain rights shall not be 32 Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2588 (2012) (opinion of Roberts, C.J.). 3 3 St. George Tucker, View of the Constitution of the United States, in 1 St. George Tucker, Blackstone's Commentaries: With Notes of Reference, to the Constitution and Laws, oftheFederal Government oftheUnited States; and ofthe Commonwealth of Virginia 140,151 (St. George Tucker ed., Lawbook Exch. 1996) (1803). 34 KurtT.Lash, "Tucker's Rule": St. GeorgeTucker andthe Limited Construction ofFederal Power, 47 Wm. & Mary L. Rev. 1343 (2006). 3 5 Tucker, supra note, at 423. 36 U.S. Const, amend. X. 36 Part I. Theory construed to deny or disparage others retained by the people,"37 and has been portrayed as a master principle of constitutional interpretation - an interpretive presumption in favor of "individual liberty."38 On this view, individuals are conceived to have natural liberty rights, and constitutional courts must review governmental action under a presumption of liberty, itself taken to be embodied in the written constitution. In both early and recent formulations, this presumption of liberty is often cast in explicitly precautionary terms. For Tucker, the point of the Ninth Amendment was "to guard the people against constructive usurpations and encroachments on their rights," and the combination of the two amendments entailed that "the powers delegated to the federal government are, in all cases, to receive the most strict construction that the instrument will bear, where the rights of a state or of the people, either collectively, or individually, may be drawn in question."39 More recently, a prominent constitutional libertarian writing in the Tuckerian tradition grounds judicial review of the constitutionality of governmental measures on the need to protect natural liberty from "legislative or executive abuses."40 Judicial review. As the last argument shows, judicial review of statutes for constitutionality has itself been justified as a precautionary principle, in the sense that it provides a beneficial safeguard against an uncertain propensity to rights-violations by legislative and executive actors. On this justification, even if courts are not systematically better than legislatures or other actors at identifying the correct scope of constitutional rights (according to some theory or other), it is beneficial to add another veto-point to the lawmaking system. Doing so has the marginal precautionary effect of reducing one type of error, the underprotection of rights.41 Admittedly, judicial review might itself create another type of error by overprotecting rights, but proponents of this view offer a judgment that the former type of error is more harmful than the latter, so that "it [is] better to err on the side 7 U.S. Const, amend. IX. Q Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 242 (2004). 9 Tucker, supra note, at 154. 0 Barnett, supra note, at 267. 1 See Frank B. Cross, Institutions and Enforcement of the Bill of Rights, 85 Cornell L. Rev. 1529,1577-78 (2000) ("the more institutions that possess a veto over government action, the more costly that action will become and the more likely the action will be struck down"); Richard H. Fallon, Jr., The Core of an Uneasy Case for Judicial Review, 121 Harv. L. Rev. 1693, J^95 (2008) ("legislatures and courts should both be enlisted in protecting fundamental rights [and] both should have veto powers over legislation that might reasonably be thought to violate such rights"). Precautionary Constitutionalism 37 of too much rather than too little protection of rights,"42 which is essentially a precautionary claim. RETAIL PRINCIPLES OF CONSTITUTIONAL INTERPRETATION Although precautionary principles of constitutional interpretation are sometimes stated in general terms, they are other times stated so as to have a limited domain, applying to particular classes of problems or controversies, to particular clauses of the written constitution, or to particular governmental powers. State taxing power. McCulloch v. Maryland,471 Chief Justice Marshall's great opinion on structural constitutionalism, is famous for its expansive construction of the national government's enumerated powers, in direct opposition to the states' rights precautionary principle advocated by Tucker. Indeed Marshall himself announced a precautionary principle that narrowly construed state power to tax federal instrumentalities. Flipping on its head Tucker's concern that an expansive construction of national power would "hazard" the "destruction" of the independent sovereign states, Marshall argued that an expansive construction of state taxing power risked the same denouement for federal instrumentalities, because "the power to tax involves the power to destroy."44 Unless the federal government possessed the power to immunize its chartered instrumentalities from state taxation, the consequences might be dire: If we apply the principle for which the State of Maryland contends, to the constitution, generally, we shall find it capable of changing totally the character of that instrument. We shall find it capable of arresting all the measures of the government, and of prostrating it at the foot of the states. The American people have declared their constitution and the laws made in pursuance thereof, to be supreme; but this principle would transfer the supremacy, in fact, to the States.45 Like Brutus, only with the opposite political valence, Marshall slips with lightning speed from the premise that a political risk is "capable" of occurring to the conclusion that it must be guarded against.46 In the words Marshall had used to mock the Antifederalists, "that power might 42 Fallon, supra note, at 1708. 43 i7U.S.3i6(i8i9). 44 Id. at 431. 45 Id. at 416. 46 7J.at432. 38 Part I. Theory be abused, was, to persons of this opinion, a conclusive argument against its being bestowed."47 Federal spending power. As historians of constitutional federalism have shown, Tuckerian principles enjoyed a revival during and after the 183 0s.48 The tradition of precautionary states'-rights argument continued strongly for another century, although of course with varied fortunes. The final crisis of the old order in the 1930s witnessed a vigorous assertion of precautionary narrow construction of national powers. Perhaps the clearest example is United States v. Butler,49 the 1936 decision in which the Court invalidated the New Deal's scheme, in the Agricultural Adjustment Act, for granting subsidies to farmers who would agree to curtail production. The issue was whether Congress might use spending to indirectly accomplish an aim that, under the contemporary law, Congress lacked the constitutional power to accomplish through direct legislation. The Court announced a precautionary principle against such uses of the federal spending power, one explicitly justified as a safeguard against political abuse: If, in lieu of compulsory regulation of subjects within the states' reserved jurisdiction, which is prohibited, the Congress could invoke the taxing and spending power as a means to accomplish the same end, clause 1 of § 8 of Article I would become the instrument for total subversion of the governmental powers reserved to the individual states. ... If the act before us is a proper exercise of the federal taxing power, evidently the regulation of all industry throughout the United States may be accomplished by similar exercises of the same power.... [T]he general welfare of the United States ... might be served by obliterating the constituent members of the Union. But to this fatal conclusion the doctrine contended for would inevitably lead.50 Presidential power and counterterrorism. Earlier, we saw a set of institutional-design proposals by Bruce Ackerman, intended as precautions against the risk or uncertain possibility of a presidential or military coup, or of executive abuses more generally. Ackerman is pessimistic about the capacity of courts to do anything to constrain executive power. Other theorists, however, urge courts to accept (or to make explicit that they have already been practicing) a set of judicial doctrines that will safeguard against the risks of executive abuses of civil liberties in the war on terror. 47 Marshall, supra note, at 240-41. 48 Lash, supra note, at 1382-89. 49 297 U.S. 1 (1936). 50 Id. at 75-78. Precautionary Constitutionalism 39 Cass Sunstein, Samuel Issacharoff, and Richard Pildes all suggest that courts should require a clear statutory statement of legislative authorization for executive action in emergencies.51 On this view, although it is too much to expect robust substantive review from courts during times of national crisis, courts can at least install democratic checks on executive overreaching through clear-statement rules. The motivation for this requirement is explicitly precautionary. The idea is that clear-statement rules will hedge against the chance that hot emotions that produce widespread public fear, and cold cognitive mechanisms like the availability heuristic, will combine to produce excessive regulatory responses to low-probability risks of terrorist activity.52 The precautions, then, are precautions against pathological decision making by the executive branch - a distinctively political risk. Recess appointments. In 2013, the federal court of appeals for the District of Columbia circuit - widely thought to be the nation's second most prominent court - decided an important case about presidential power to make "recess appointments," or appointments that are made while the Senate is not in session, and thus bypass the usual process of Senate consent. The relevant clause of the Constitution provides that "[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."53 One of the main issues in the case - Noel Canning v. NLRB,54 conventionally known as Canning - was whether that clause allows the president to make "intrasession" recess appointments, when the Senate takes a recess during a given session of Congress, or instead allows only "intersession" recess appointments, when the Senate takes a recess between sessions of Congress. The court held that the latter, narrower interpretation was correct; it said that intrasession recess appointments are prohibited. (There was also another holding, not relevant here.) The court's initial arguments for this conclusion drew on the text and original understanding of the constitutional clause." [T]he Recess," according to the court, could only mean, and at the time of the Constitution's ratification did mean, an intersession recess. Despite that textualist and originalist beginning, however, the heart of the court's opinion was a long, 51 See Samuel Issacharoff & Richard H. Pildes, Between Civil Libertarianism and Executive Unilateralism: An Institutional Process Approach to Rights During Wartime, 5 Theoretical Inq. L. 1 (2004); Cass R. Sunstein, Minimalism at War, 2004 Sup. Ct. Rev. 47. 5 2 See Sunstein, supra note, at 74-7 5. 53 U.S. Const, art. II, sec. 2, cl. 3. 54 705 F.3d 490 (D.C. Cir. 2013), cert, granted, U.S. (June 24, 2013). 40 Part I. Theory impassioned treatment of the functional effects and broad purposes of the constitutional structure. And the nub of the court's reasoning was precautionary. Intrasession recesses must be excluded from the scope of the recess appointment power as a precaution against the risk of presidential aggrandizement, or even presidential despotism. In the court's words: To adopt the [government's] proffered intrasession interpretation of "the Recess" would wholly defeat the purpose of the Framers in the careful separation of powers structure reflected in the [appointments provisions of the Constitution]. As the Supreme Court observed ... "The manipulation of official appointments had long been one of the American revolutionary generation's greatest grievances against executive power, because the power of appointment to offices was deemed the most insidious and powerful weapon of eighteenth century despotism."55 Recess appointments are hardly the stuff of which tyranny is made, because of their inherently limited duration, expiring at the end of the next congressional session. So one might see all this talk of aggrandizement and despotism as a rhetorical flourish in support of the textual arguments. Yet the opposite is closer to the truth. The court was quite candid that the point of its textual arguments was to establish a firm rule as a precaution against presidential aggrandizement: We must reject... vague alternative[s] in favor of the clarity of the interses-sion interpretation. As the Supreme Court has observed, when interpreting "major features" of the Constitution's separation of powers, we must "establish high walls and clear distinctions because low walls and vague distinctions will not be judicially defensible in the heat of interbranch conflict." ... Allowing the President to define the scope of his own appointments power would eviscerate the Constitution's separation of powers.5*5 Canning is best understood to adopt a rigid and narrow interpretation of the recess appointment power, excluding all intrasession recess appointments, as a precaution against the risk of presidential despotism. The judges were haunted by a slippery-slope risk - the risk that, unless a clear line were drawn, the president would end up with "free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction."57 Analytically, there is no necessary connection between 705 F.3