Civil libertarians would be making a huge mistake to ignore Posner's ideas--there's a logical coherence behind them that's missing from most defenses of executive power, such that reading his argument actually enables you to make a better argument against executive power.
Take this paper The Credible Executive
Posner and Vermeule wrote.
We suggest several mechanisms with which a well-motivated executive can credibly signal his type, including independent commissions within the executive branch; bipartisanship in appointments to the executive branch, or more broadly the creation of domestic coalitions of the willing; the related tactic of counter-partisanship, or choosing policies that run against the preferences of the president's own party; commitments to multilateral action in foreign policy; increasing the transparency of the executive's decisionmaking processes; and a regime of strict liability for executive abuses.
For one thing, the very availability of these mechanisms, once generally known, indirectly provides the public with information even if they are not used, and indeed because they are not used. The failure to invite members of the other political party, or foreign nations, to participate in a crucial decision of foreign policy might cause voters to increase their skepticism about executive motivations.
Although they don't appear to intend it as such, these words offer an extremely damning view of the Bush Administration's grab for executive power. Bush is doing hardly anything at all to signal himself as a well-intentioned executive. He may not be harassing political opponents (though, like Balkin points out, the U.S. Attorneys incident and surveillance of the Muslim community vaguely resemble that), but he does seem to withhold information by which we might judge the effectiveness, competence and rationality of his decisions. He witholds this information not merely from the people, but apparently from Congressional committees and secret courts capable of viewing classified material securely. Granting Bush further powers to restrict information may not result in a loss of "political competition", but it might result in a decrease in effectiveness of our national security operations. (Consider that more Americans have died as a result of the decision to invade Iraq than as a result of the 9/11 terror attacks). Bush has given us a world in which opinions are free, but facts are restricted.
If executives would only be trusted in so far as they proved themselves trustworthy, then that would represent a fantastic improvement in both government integrity and national security. If the social norms and implicit rules of the game were changed such that agreement to checks on your own power was a necessary component of acquiring more power, both the nation and the entire world would be much safer (see Nonzero
, of course).
The other reason Posner is worth reading is that he makes clear something I hadn't noticed before--the link between executive power and free markets. By grounding his arguments in public choice theory (something that didn't really come out in this diavlog) impatience with the rule of law and love for competitive markets become part of a seamless garment that conservatives aren't usually so open about. In the liberal world view, people of good will reach some sort of Pareto-optimum compromise by rational argument. In public choice theory this is impossible--everyone is out to screw the other guy so legislatures, arguments, debates, and reason are just a sleight of hand that allows legislators and bureaucrats to defraud the public. PC theorists hate legislatures--they love single unitary executives that can be held responsible for success or failure--whether by buying or selling the stock of a corporations led by a single unitary CEO, or by dumping or retaining the POTUS depending on the answer to Reagan's immortal "are you better now than you were four years ago" question. It's a world of executives, in which business and government are just black boxes, the internal workings of which we're better off not knowing.
As appalling as I find this, at least this is in utilitarian rather than the traditionalist terms that "strict interpretationists" employ with much cognitive dissonance.