Executive Discretion and Crisis Prevention: An Efficiency Rationale for Limitations on Executive Power

Abstract

What is the role of legal limits on executive action, if any, in times of crises when citizens demand more security and allowing executive officials legal flexibility appears necessary to achieve it? We develop a game-theoretic model to show that when the executive faces increased electoral incentives to provide security and has legal flexibility to choose any policy it finds optimal, security from terrorism can actually decrease. In contrast, when the executive faces increased electoral incentives to provide security and there is an explicit limit on executive antiterrorism actions, security from terrorism always increases. We also show that the social objective of terrorism prevention is better achieved when there are some limitations on executive action rather than when executive officials have legal flexibility to devise security policy. The analysis has implications for the nature and scope of executive power as well as for understanding how to design the structure of liberal governments to prevent security crises.