Tom Friedman still can't connect the dots

Sandy Levinson

From tomorrow's column by Tom Friedman in the NYTmes:

I’ve always believed that America’s government was a unique political system — one designed by geniuses so that it could be run by idiots. I was wrong. No system can be smart enough to survive this level of incompetence and recklessness by the people charged to run it.....

I always said to myself: Our government is so broken that it can only work in response to a huge crisis. But now we’ve had a huge crisis, and the system still doesn’t seem to work. Our leaders, Republicans and Democrats, have gotten so out of practice of working together that even in the face of this system-threatening meltdown they could not agree on a rescue package, as if they lived on Mars and were just visiting us for the week, with no stake in the outcome.

I don't always agree with Friedman, but I think he is smart and savvy. But note the tension in the two paragraphs. Paragraph one accurately describes the American system as "unique," and it may even have been designed by "geniuses" in order to solve the problems they perceived in 1787 America. For example, James Madison loathed the principle of equal representation in the Senate, but he submitted to it as a necessary political compromise at the time. And, by the way, he didn't really believe that it could be run by "idiots." The best reading of Federalist 10 is that representative government would serve as a filtration system to select out the most public-spirited (in civic-republican language, "virtuous") among us. For a variety of reasons, including the inability to predict the rise of the mass-based political party, that vision didn't survive.

The second paragraph returns to the "broken government" trope that is a feature of this year's campaign. But Friedman locates the "brokenness" in an almost inexplicable inability to "work together." Nowhere is there any suggestion that the Constitution, designed by "geniuses" though it may be, may have played some role. It's not only the multiple checks and balances and ambitions countering ambition; it's also the fact that not a single member of Congress, except those running for the White House, has an incentive to think in terms of the "national interest" (assuming that term makes any real sense), since each and every one is a local official elected by a necessarily parochial local constituency. Thus the impact of angry constituents and their phone calls. Would a more "nationally-minded" House necessarily have passed the bill? We'll obviously never know. But what we do know is that parochialism remains supreme, especially when one of the parties no long has a "leader" it is willing to defer to, as has so dramatically happened with George W. Bush, who is reduced to his legal powers but is otherwise wholly without "authority." It's every man and woman for him/herself in the Republican Party right now, especially as they see the McCain candidacy collapsing. Perhaps some year some very bright and well-paid pundit will realize that one really can't explain the American political system without paying at least a modicum of attention to the Constitution.





Posted 10:55 PM by Sandy Levinson [link] (21) comments

How the Financial Crisis is Reshaping Democratic Politics: Term Limits Reconsidered (written with Elizabeth Garrett)

Rick Pildes

The financial crisis is already reshaping electoral politics even in the short term. The crisis appears to have transformed the presidential race, with Sen. Obama apparently moving ahead substantially during the last two weeks, at least for now, directly as a result. Now, we are seeing another consequence: the crisis appears to be the final catalyst in the decision of New York’s Mayor Bloomberg to attempt to seek a third term in office and to get the city to modify the term-limits law that would otherwise prohibit him from doing so. Although Mayor Bloomberg has been contemplating this action for some time, the crisis is suddenly providing enough support from those who had been principal proponents of the term-limit law (such as Ronald Lauder) to conclude that the times require modifying the law. The seriousness of the current economic situation is thus prompting a re-assessment of thought about how to organize government. Mayor Bloomberg is betting that voters will now prefer the values of stability and experience over the desire for fresh blood, turnover, and change that characterized the term limit movements of the 1990s.

With respect to the specific issue of term limits, then, this is a good time to take stock of what we have learned from the last decade’s experience. A term-limits movement swept the country in the early 1990s, when 21 states adopted term limits for state legislators. Some local governments, including New York City, rode this wave. In a 1993 referendum, voters changed the New York City Charter to bar officials, including the mayor, from serving more than eight consecutive years. One of the primary goals, according to the new Charter, was the return of “citizen representatives” who would be responsive to the “needs of the people and not career politicians.”

One conclusion is clear: term limits have not ushered in the era of the citizen-politician, the romantic figure who would serve in government briefly, then return to private life. Instead, politics is now a game of musical chairs played by political careerists, not amateurs, who move from office to office. These careerists are more likely to be women or under-represented minorities than before, but term limits only accelerated changes that were inevitable in light of demographic shifts. Regardless of their gender or background, term-limited officials are still ambitious politicians who hope to move from local to state to federal government over the course of a long career.

Knowing that they will have to move to different jobs in just a few years affects the way term-limited politicians approach their current jobs. Term-limited officials are particularly eager to single themselves out immediately to ensure they have a brand name when they have to run as a newcomer for a different office. Thus, term-limited legislators push to enact laws quickly; they are unwilling to spend their early years learning the ropes; and they are impatient with time-consuming negotiation and compromise necessary to craft comprehensive and considered reform. As political scientists Thad Kousser and Bruce Cain found in their study of the California legislature under term limits, “[n]ew legislators must learn faster, take more responsibility sooner, and operate with fewer personal relationships than legislators in the past.”

One area profoundly affected by legislative term limits has been the budget process. Constructing the budget of a large city or a state is a complicated matter of both substance and political give-and-take. Success requires compromise within the legislature and between the legislative and executive branches. Term-limited officials lack the time to develop either the expertise or the connections to other political actors that budgeting demands. Moreover, a shortened time horizon feeds the tendency of politicians to cope with fiscal challenges with short-term fixes rather than structural change.

On the other hand, one potentially beneficial change in legislative behavior is that term-limited legislators may spend less time working to secure pork for their constituents, particularly toward the end of their terms in a particular office. Instead, legislators spend that time in “position-taking and legislative showboating” designed to position them for their next political office, according to a study by Professors Carey, Niemi and Powell. It’s not clear that voters are more enthusiastic about this legislative behavior than they were about pork-barrel politics.

In short, the consensus view is that while the disasters some opponents of term limits predicted have not occurred, there is little evidence of improved policymaking. Term limits exacerbate some of the pathologies of the political process, such as overly quick policy responses and insufficient deliberation on difficult problems, as well as discourage politicians from considering long time horizons when evaluating policy. There may be new faces and renewed energy in institutions with term limits, but that seems to come at the cost of effectiveness and a transfer of power to more experienced lobbyists and staffers. In the 2000s, two states repealed the term-limit laws they had adopted a decade earlier. Four state supreme courts held their states’ term limits unconstitutional. No new state term limits have been adopted since 2000.

The studies have focused on term limits for legislators. But it seems fair to conclude that executives limited to one or two terms will also have less time to develop policy and procedural expertise. New executives must quickly develop the relationships that enable compromise; the risk exists that they will focus on their next political race to the detriment of their constituents in the office they hold. The question is whether these losses in institutional memory and skill are counterbalanced by some advantage unique to term limits for executives.
Although 37 states limit gubernatorial terms, many large cities do not impose term limits on mayors: Chicago, Boston, Cleveland, Baltimore, Milwaukee, Seattle, Cleveland, St. Louis, Pittsburgh, Miami and others. But some large cities were caught up in the general term-limits wave of the early 1990s and adopted these mayoral limits. In addition to New York, these large cities include Los Angeles, San Diego, Dallas, Phoenix, and Denver (some cities, like San Francisco and Kansas City, had imposed term limits for mayor before the 1990s). Arguably, distinct reasons exist to favor term limits for executives, even if not for legislators. Executives often have the power to make decisions unilaterally, unlike a single lawmaker, and term limits may operate in this context to combat the corruption that can go hand-in-hand with that kind of power. If the power of incumbency is strong, term limitations may be the only way to ensure periodic turnover in the jurisdiction’s chief executive.

One final surprising lesson can be drawn from experience with state term limits. Politicians who break a promise to serve limited terms or who vote to repeal term limits tend not to face electoral backlash. Many federal legislators who reneged on their promises to return to private life were reelected to Congress. And few state lawmakers in Idaho who voted to eliminate legislative term limits felt the ire of voters, who had adopted the reform through the initiative. Thus, while experience suggests less enthusiasm for term limits now than in the early 1990s, and debate continues about the costs and benefits of limited terms for different offices, the most realistic effect of term limits may be to raise the bar for officials seeking to serve beyond a pre-set number of terms: they must be well-regarded enough to overcome the partial hit they take for changing a term-limits law, but if they are, voters are unlikely to punish them on Election Day.

Mayor Bloomberg is calculating that serious times will lead voters to value experience more today than they did in the early 1990s. Even in just two weeks, the financial crisis is already having ramifications for how voters think about democracy. This is surely just the beginning.
Posted 4:18 PM by Rick Pildes [link] (16) comments

Representatives in Safe Seats, Not Vulnerable Ones, Killed the Bailout Bill

Rick Pildes

One of the instant myths being created about Congress' defeat of the bailout bill is that members facing close contests this fall were forced to cast a "tough vote" and, in order to protect their electoral prospects, voted against the bill. But this is misleading and it assigns short-term, self-interested electoral calculations for the depth of the resistance. Only 30 negative votes came from members in vulnerable seats. True, this means 79% of those in vulnerable seats voted against. But there were 198 votes against from those in safe seats, which is right around 50% of those in safe seats, and while those in vulnerable seats might be thought to have provided the marginal difference, those votes would be irrelevant if there were not such widespread opposition. Put another way, if those 30 no votes from vulnerable seats were split the same way as the votes from safe seats, there would still have been 213 votes against the bill. It's important not to lose sight of how few House seats are actually vulnerable and how few House elections are competitive.

I take the data here from http://www.fivethirtyeight.com/2008/09/swing-district-congressmen-doomed.html, and I think Professor David Canon for pointing me in this direction.
Posted 7:49 AM by Rick Pildes [link] (9) comments

The Abortion Discount: Liberty, Equality and Illicit Sex

Guest Blogger

[For The Conference on The Future of Sexual And Reproductive Rights]

Kim Shayo Buchanan

Many reproductive rights scholars, including me, seek to buttress existing protections for sexual and reproductive autonomy by integrating gender equality concerns into the existing jurisprudence of Due Process sexual and reproductive liberty. Like the liberal minority of the Supreme Court that nodded to these concerns in Planned Parenthood v. Casey and Gonzales v. Carhart, we hope that the more stringent level of scrutiny applied in modern Equal Protection cases, especially VMI, might strengthen existing constitutional protections for sexual and reproductive rights. As Reva Siegel explains, “By grounding their objections in guarantees of equality as well as liberty, the dissenting Justices make clear their view that constitutional controversy will persist even if Roe is reversed.”

My concern here, though, is that equality arguments have not substantially fortified this Court’s protection of reproductive rights. Rather, the liberty-equality influence may be flowing in the opposite direction: the deferential standards introduced in substantive Due Process sex cases seem to point the courts toward a deferential approach to Equal Protection challenges, as well. Here are my preliminary thoughts.

The two Due Process cases in which the Supreme Court’s use of equality rhetoric was most striking were Casey and Lawrence v. Texas. Each of these decisions established a level of scrutiny that seemed, on its face, to establish a form of review which was substantially more deferential than the heightened Equal Protection scrutiny used by the Court in VMI, and most lower courts applied them that way. The deferential analysis developed in the Court’s substantive Due Process abortion cases, especially Casey and Carhart, now threatens to erode Equal Protection of gender equality by replacing heightened scrutiny with undue burden, or some other, unnamed form of deferential review that works a lot like rational basis. I’ll describe this erosion, which (as I’ll describe below) isn’t limited to abortion cases, as the “abortion discount.”

I see three main reasons for concern about this possibility. First, ever since Frontiero v. Richardson, a substantial minority of the Supreme Court, led by Justices Powell and Rehnquist, has argued that, because the Fourteenth Amendment provides no explicit textual basis for treating gender as a suspect or quasi-suspect classification, sex-discriminatory laws should be subject to minimum rationality review as in Williamson v. Lee Optical and McGowan v. Maryland. While Justice Rehnquist eventually came around on the intermediate scrutiny issue, Justice Scalia, the lone dissenter in VMI, has taken up the rational-basis torch. Legally sanctioned sex discrimination, he points out, is “a practice not expressly prohibited by the text of the Bill of Rights” and it “bears the endorsement of a long tradition of open, widespread and unchallenged use that dates back to the beginning of the Republic.” He calls it “perfectly clear” that, if the appropriate level of scrutiny for sex-based classifications were up for reconsideration, it should be “reduc[ed] … to rational-basis review” as in Hoyt v. Florida and Gosaert v. Cleary. A sex-discriminatory law should be upheld as long as the state could offer any “basis in reason” for it.

Justice Thomas probably shares this view. Although he recused himself from VMI, he (along with Chief Justice Rehnquist and Justice White) joined Justice Scalia’s dissent in Casey, in which Justice Scalia advanced essentially the same tradition-and-text argument against the existence of a substantive Due Process abortion right.

The second reason for concern about the abortion discount is that, as I observed in my earlier article, Lawrence v. Geduldig, it is already happening. Both the Supreme Court and federal appellate courts have held, without explanation, that, where the subject matter of a purported denial of Equal Protection is abortion, normal heightened scrutiny does not apply. Instead, the Fourth and Ninth Circuit courts of appeals have applied undue burden to Equal Protection sex equality challenges brought against burdensome state licensing requirements that apply to abortion procedures, but not to outpatient procedures of similar medical complexity that are needed by men.

In Bray v. Alexandria, a majority of the Supreme Court, led by Justice Scalia, went further. Citing Geduldig v. Aiello, Maher v. Roe and Harris v. McRae, it concluded that, when an Equal Protection sex equality claim concerns abortion, the applicable constitutional test is “not the heightened-scrutiny standard that our cases demand for sex-based discrimination” – or even undue burden – “but the ordinary rationality standard.”

Although this declaration is arguably dicta, Justice Scalia’s majority in Bray included Justices Thomas and Kennedy, as well as Chief Justice Rehnquist and Justice White. Assuming that Chief Justice Roberts and Justice Alito are no more likely to find an Equal Protection right to abortion than Rehnquist or White was, at least three and probably five judges of the current Supreme Court might take the view that a law that is challenged as an Equal Protection violation should be easier to justify if it violates a substantial Due Process right, as well.

Third, there is reason to believe that the abortion discount may jeopardize Equal Protection sex equality even in cases that do not involve abortion. Ever since Reed v. Reed, the Court “has carefully inspected official action that closes a door or denies opportunity to women (or to men).” The Court has thus been skeptical of pregnancy-related justifications offered for excluding women from public life, whether in education, the workplace, or the courts (but not the military). The Court has, without exception, invalidated rules that enforce de jure subordination of married women to their husbands or that allocate rights or benefits based on “the State’s preference for an allocation of family responsibilities under which the wife plays a dependent role.”

On the other hand, as I observed in Lawrence v. Geduldig, the Court’s robust commitment to gender equality crumbles when a sex-differentiated law is framed as a regulation of sexual behavior, as opposed to participation in public life. In Michael M. v. Sonoma County, the Court upheld a gendered statutory rape law as a rough legislative effort to deter “illegitimate teenage pregnancy.” In Nguyen v. INS, it upheld a gendered citizenship law, citing “concern” that young servicemen posted abroad might not have “the opportunity for a meaningful relationship” with a child born abroad because they might not “know that a child was conceived,” or that foreign women might mistakenly identify them as fathers.

What strikes me about this pattern is that the Court’s vigilance in protecting women against discrimination in the public sphere is not matched by equal concern for gender equality when it comes to sex. The invocation of concerns about nonmarital sexual morality – evaluated through the lens of the sexual double standard – seems to trigger a diminished level of Equal Protection scrutiny even in cases that do not involve abortion.

Underlying this pattern, it seems to me, is a concern that too much gender equality might threaten the structure of heterosexuality. Phyllis Schlafly, for example, “mobilized opponents of the ERA by arguing that it would constitutionalize abortion and homosexuality.” Conservatives feared that constitutional protection of gender equality might mandate what Justice Scalia, dissenting in J.E.B. v. Alabama, called a “unisex” vision of human nature that insists, wrongly, that “il n’y a pas de différence entre les hommes et les femmes.”

Likewise, the liberal minority on the Court is careful to reassure the reader that gender equality is not a threat to heterosexual sex, and vive la différence: “‘Inherent differences’ between men and women … remain cause for celebration,” Justice Ginsburg holds in VMI, but they may not be used “for denigration of the members of either sex or for artificial constraints on an individual’s opportunity. … such classifications may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women.”

As Reva Siegel, Sylvia Law and others have so amply demonstrated, anti-abortion legislation “aims to regulate women, as well as the unborn.” I agree, and see abortion as part of a broader set of legal norms and practices that enforce heteronormative gender roles and orthodoxies by regulating sex. The abortion discount thus highlights the modernization of our constitutional gender status regime. No longer may states penalize respectable women for working to support their families, nor may they impose “legal, social, and economic inferiority” in the public sphere. But the abortion discount at the intersection of Due Process and Equal Protection allows state and federal governments to continue to enforce traditional gender roles by targeting illicit or immoral sex, and the stigmatized people who have it.

The liberty and equality rights of abortion-seeking women receive a level of review that, since Gonzales v. Carhart, increasingly resembles rational basis. This deferential approach is consistent with constitutional review of other sex status laws that govern other groups framed as sexual wrongdoers. Anti-gay legislation, for example, is not subjected to heightened scrutiny as sex discrimination, but to a form of enhanced rational basis scrutiny purportedly derived from Romer and Lawrence v. Texas. The Lawrence disclaimers make it difficult to challenge state and federal “defense-of-marriage” laws. The Casey decision authorized parental and judicial involvement in young women’s abortion decisions, while the combination of Geduldig and the Equal Protection intent requirement make it difficult to frame federal funding of gender-stereotyped abstinence-only programs as an Equal Protection violation. Federal law seeks to alleviate poverty by addressing the presumed moral failings of “those groups most likely to bear children out-of-wedlock” through marriage promotion for the African-American poor. Women receiving social assistance, who are stereotyped as lazy, promiscuous black “welfare queens,” are subject to “family cap” restrictions, and their challenges to welfare rules receive what amounts to deferential review even when they allege a quasi-suspect classification or a violation of a fundamental right.

Thus the abortion discount forms part of a broader constitutional regime in which Equal Protection and Due Process empower governments to enforce gender hierarchies by regulating the illicit sex of low-status women and men.



Posted 6:05 AM by Guest Blogger [link]

"OK, We Are a Banana Republic"

Sandy Levinson

This is the title of Paul Krugman's blog following the vote. He writes:

So what we now have is non-functional government in the face of a major crisis, because Congress includes a quorum of crazies and nobody trusts the White House an inch.
As a friend said last night, we’ve become a banana republic with nukes.

In most other countries around the world, the (non-functioning) government would fall, to be replaced. We, of course, are stuck with the political system that our Constitution constitutes. As it happens, one might argue that Bush has behaved with some degree of responsibility this time around, but, as Krugman says, "nobody trusts the White House an inch," for very, very good reason. So Bush clearly has to go, except that we can't do that, and, besides, no sane person would suggest replacing him with Cheney at this point.

I have no idea what "we" should be doing now. But I'm positive that the Constitution we have isn't helping us right now.

Posted 6:46 PM by Sandy Levinson [link] (84) comments

Vice Presidential Turing Test

JB

Is it Sarah or a Markov chain? You decide.

The burning question posed by the Vice-Presidential Turing Test is not whether machines can think, but whether Vice Presidential candidates can.


Posted 5:30 PM by JB [link] (8) comments

The Paradox of Choice

Guest Blogger

[For The Conference on The Future of Sexual And Reproductive Rights]

Kristin Luker

Here’s the paradox about Sarah Palin: much as she would go out of her way to deny it, she is who she is because she’s the beneficiary of both the rhetoric and the reality of choice. I don’t just mean the obvious—that a self-described hockey mom, small-town mayor and short-term governor of state whose population is less than that of the city of San Francisco --can be in the running to be a heartbeat away from the Oval Office. (And given that McCain, if elected, will be the oldest first-term president and a cancer-survivor to boot, that heartbeat cliché has a little more resonance this time around than is usually the case.)

It’s more that she’s been able to make choices in realms that were unimaginable in the years before Roe v. Wade. Not just in the realm of work and family, but in many other areas, Sarah Palin’s life has been deeply shaped by choices Roe made possible, choices that are probably invisible to Palin and to many Americans as well.

What militantly pro-life Palin would deny is that abortion and the pill, as the Harvard economist Claudia Goldin has shown, were the keys that opened up higher education and the professions to women. Not just in the obvious ways, so that you could time your fertility and your education without sacrificing either, but in subtle cultural ways as well. When I was a graduate student in 1970 at Yale, I was denied a fellowship because, as I was airily told, I just might get married and have children. Five years later, no department chair in the Ivy League would have said that with a straight face, because Roe made clear that while women might very well get married and have children, we’d do it the way men did—when it worked for us and fitted into the larger trajectory of our lives.

Or take Palin’s new baby, the one with Down syndrome. I’m old enough to remember when it was the norm to send Down babies to institutions where warehousing, neglect and a refusal to remedy reasonably simple physical problems compromised these children’s abilities and often their very lives. Now, paradoxically, because parents affirmatively choose in many cases—as Palin reportedly did—to continue a pregnancy with full knowledge that a Down syndrome baby is on the way, parents and society alike increasingly treat children with Down syndrome as full members of our society, rather than as unfortunate accidents to be whisked out of public view. Again the paradox of choice: those parents who do not feel capable of taking on the challenges-and rewards—of having a child that’s “different,” opt out by choosing abortion, but those who see themselves as equal to the task demand respect and support.

Or finally, take Palin’s 17 year old unwed daughter, Bristol. Once again, abortion has changed the cultural, social and legal world in which Bristol’s pregnancy takes place. When out-of-wedlock pregnancy was an accident, something over which women had no control, it was shameful. Women my age have endless stories of the friend who sought an illegal abortion in the dark streets of Tijuana; or was sent away to the Midwest for a sudden “vacation;” or rapidly married someone in a relationship often fatally burdened by the circumstances that brought it into being. Conservative commentators bewail the lack of shame attending unwed pregnancy these days, but whether they will say it out loud or not, abortion, by making pregnancy a choice, has eroded the culture of shame that once surrounded it.

I don’t mean to sound like an unregenerate Pollyanna. Choice brings with it the obligation to choose, and as Erich Fromm pointed out, the temptation to escape from freedom is a powerful one. Cognitive psychologists have echoed Fromm’s point: more choices make us more anxious.

Which is why Palin is probably the perfect woman of her era. A woman whose life is shaped by choices fought for and won before she was a teenager, who sees no relationship between intimate choices she and her family take for granted and hard political struggles over the past century, now casually aspires to take those choices away from her fellow citizens.


Posted 1:33 PM by Guest Blogger [link]

The DOJ IG/OPR Report on the U.S. Attorney Firings

Marty Lederman

It's here (warning -- 392-page pdf file).

Who refused to be interviewed by the Inspector General? Karl Rove, Harriet Miers, former Deputy White House Counsel (and current Notre Dame law professor) William Kelley , Associate WH Counsel Richard Klingler, Senators Kit Bond and Pete Domenici, and Domenici's chief of staff. Is there any apparent justification for their refusals? No. And the White House refused to provide internal e-mails and documents, even though it conceded that there is no claim of executive privilege here. The Administration also refused to give the IG a memorandum about the scandal prepared by Associate Counsel Michael Scudder, even though the memorandum has been provided to OLC. (The Counsel's office eventually provided a redacted version that the IG calls "worthless.") The White House Counsel's office wrote in explanation that "we viewed the situation as in some sense analogous to civil discovery efforts to obtain an opponent's attorney work-product material." The Counsel's Office, in other words, views the investigating components of the Justice Department as analogous to "opponents" in civil litigation.

The Counsel's Office also wrote that "[o]ur disclosure was necessarily partial because, in our judgment, total, unqualified disclosure of all factual portions of the entire draft chronology would have an adverse impact on the effective provision of legal advice within the White House. That impact, as we perceived it, was not outweighed by OIG/OPR's need for the undisclosed information, at least to the extent we understood that need as articulated in our discussions with your office."

Of course, to the extent the draft chronology does not reflect any unlawful conduct, its disclosure would be unlikely to have any chilling effect on legitimate White House communications, and would assist the IG and OPR in understanding what happened here. And to the extent the chronology reveals unlawful conduct, there is no justification for the White House to keep such evidence secret in the first place. Not surprisingly, then, the IG and OPR do not agree with the rationales for the White House's refusals, which they conclude "hindered" their investigation.

The basic thrust of the Report, as I understand it, is that Kyle Sampson was acting in cahoots with the White House Counsel's Office to fire disfavored U.S. Attorneys -- at least some for possibly impermissible reasons -- and that AG Gonzales and others at DOJ therefore left the entire project up to Sampson, stepping in merely to rubberstamp whatever decisions he reached in accord with the Counsel's Office.

Important findings include:

[T]he statements provided by the Attorney General and other Department officials about the reasons for the removals were inconsistent, misleading, and inaccurate in many respects.

The most serious allegations that arose were that the U.S. Attorneys were removed based on improper political factors, including to affect the way they handled certain voter fraud or public corruption investigations and prosecutions. Our investigation found significant evidence that political partisan considerations were an important factor in the removal of several of the U.S. Attorneys. The most troubling example was David Iglesias, the U.S. Attorney in New Mexico. We concluded that complaints from New Mexico Republican politicians and party activists about Iglesias’s handling of voter fraud and public corruption cases caused his removal, and that the Department removed Iglesias without any inquiry into his handling of the cases.

However, we were unable to fully develop the facts regarding the removal of Iglesias and several other U.S. Attorneys because of the refusal by certain key witnesses to be interviewed by us, as well as by the White House’s decision not to provide internal White House documents to us. Therefore, we recommend that counsel specially appointed by the Attorney General work with us to conduct further investigation and ultimately to determine whether the totality of the evidence demonstrates that any criminal offense was committed.

* * * *

Gonzales acknowledged to us that he did not discuss with Sampson how to evaluate the U.S. Attorneys or which factors to consider. We found that Gonzales eventually approved the removals of a group of U.S. Attorneys without inquiring about the process Sampson used to select them for removal, or why each name was on Sampson’s removal list. Gonzales also did not know who Sampson had consulted with or what these individuals had said about each of the U.S. Attorneys identified for removal. Instead, Gonzales told us he “assumed” that Sampson engaged in an evaluation process, that the resulting recommendations were based on performance, and that the recommendations reflected the consensus of senior managers in the Department. Each of those assumptions was faulty.

Gonzales also said he had little recollection of being briefed about Sampson’s review process as it progressed over a year and a half. He claimed to us and to Congress an extraordinary lack of recollection about the entire removal process. In his most remarkable claim, he testified that he did not remember the meeting in his conference room on November 27, 2006, when the plan was finalized and he approved the removals of the U.S. Attorneys, even though this important meeting occurred only a few months prior to his testimony.

This was not a minor personnel matter that should have been hard to remember. Rather, it related to an unprecedented removal of a group of high level Presidential appointees, which Sampson and others recognized would result in significant controversy. Nonetheless, Gonzales conceded that he exercised virtually no oversight of the project, and his claim to have very little recollection of his role in the process is extraordinary and difficult to accept.

We also found that Deputy Attorney General McNulty had little involvement in or oversight of the removal process, despite his role as the immediate supervisor of all U.S. Attorneys. McNulty was not even made aware of the removal plan until the fall of 2006. When McNulty learned about the plan, he thought it was a bad idea. However, he deferred to Sampson and did not raise his concerns with regard to the plan itself or, except in a couple of cases, the evaluation of specific U.S. Attorneys to be removed. Rather, he distanced himself from the project, both while it was ongoing and after it was implemented.

Moreover, we found that there was virtually no communication between Attorney General Gonzales and Deputy Attorney General McNulty about this important matter. Even when McNulty learned about the plan in the fall of 2006 (more than a year after Gonzales and Sampson initiated the removal process), he did not discuss any of his concerns about the plan with Sampson or Gonzales.

We found no evidence that Gonzales, McNulty, or anyone else in the Department carefully evaluated the basis for each U.S. Attorney’s removal or attempted to ensure that there were no improper political reasons for the removals.

Sampson was primarily responsible for creating the plan, selecting the U.S. Attorneys to be removed, and implementing the plan. He said he consulted with Department officials in informal settings to get their “frank assessments” of U.S. Attorneys, and Sampson described himself as the “aggregator” of their views. Sampson also testified that he had “no independent basis” for removing any U.S. Attorney and that he relied on other Department officials, such as McNulty, Executive Office for U.S. Attorneys (EOUSA) Directors Mary Beth Buchanan and Michael Battle, and Associate Deputy Attorney General David Margolis to make recommendations about who should be removed. He said, “[i]n my mind, they were the Department officials who would have reason to make informed judgments about who might be added to such a list.”

This claim was misleading. Neither Sampson nor anyone else in the Department ever engaged in a systematic assessment of the performance of U.S. Attorneys to determine who was underperforming and should be replaced.

Instead, Sampson’s evaluation process was casual, ad hoc, and anecdotal, and he did not develop any consensus from Department officials about which U.S. Attorneys should be removed.

* * * *

We believe that senior Department officials – particularly the Attorney General and the Deputy Attorney – abdicated their responsibility to safeguard the integrity and independence of the Department by failing to ensure that the removal of U.S. Attorneys was not based on improper political considerations.

* * * *

[W]e found evidence that complaints to Rove and others at the White House and the Department by New Mexico Republican political officials and party activists about how Iglesias was handling voter fraud cases and a public corruption case led to Iglesias’s removal.

* * * *

We recommend that a counsel specially appointed by the Attorney General assess the facts we have uncovered, work with us to conduct further investigation, and ultimately determine whether the evidence demonstrates that any criminal offense was committed with regard to the removal of Iglesias or any other U.S. Attorney, or the testimony of any witness related to the U.S. Attorney removals.

The Department’s removal of the U.S. Attorneys and the controversy it created severely damaged the credibility of the Department and raised doubts about the integrity of Department prosecutive decisions. We believe that this investigation, and final resolution of the issues raised in this report, can help restore confidence in the Department by fully describing the serious failures in the process used to remove the U.S. Attorneys and by providing lessons for the Department in how to avoid such failures in the future.

More -- much more -- to similar effect in the Report itself.
Posted 10:08 AM by Marty Lederman [link] (13) comments

War Powers, Guns, and Spitzer's Complaint (with a note on original meaning)

Stephen Griffin

This semester I’m teaching “Foreign Affairs and the Constitution” (from the Bradley-Goldsmith casebook) after a long hiatus. I’ve been meaning to blog about some of the issues I’m covering, especially war powers. But in this post I’ll also look at a 2008 book by political scientist Robert Spitzer, Saving the Constitution from Lawyers: How Legal Training and Law Reviews Distort Constitutional Meaning. I couldn’t resist buying a book with that title and it is worth noting it comes with strong endorsements from prominent historians and political scientists who are apparently fed up with the law reviews.

This is a long post and I don't mean to break up the discussion as the biggest financial rescue in U.S. history goes forward. So the rest is after the jump.

Spitzer develops two well-supported indictments of legal scholarship. First, much of it is not scholarship in search of the truth but lawyering, clever brief writing in the wrong forum. Second, much of it is published in student-run law reviews as opposed to peer-reviewed journals and that leads to bad habits and poor quality control (note some law journals are peer reviewed). In the heart of the book, he offers three examples of poor quality constitutional scholarship, as run by law professors: the line item veto, presidential commander in chief powers, and gun control. Spitzer has previously published on all three topics and apparently feels his scholarship, and that of other political scientists, including some giants like Edward Corwin, has been slighted in the law reviews. To be fair, that’s not the main focus of his critique. An undercurrent in the book is his dismay at some of the questionable constitutional interpretations put forward by the Bush administration, particularly those advanced by John Yoo in the area of presidential war powers. Spitzer clearly believes that the fact that these ideas were first advanced in law reviews gave Yoo and his theories a credibility in the administration that was unwarranted.

Spitzer does not deny that law reviews publish a great deal of first-rate scholarship. He contends, “the central problem is not that there is no limit to superb writing and analysis but rather that there is no floor to dreadful writing and analysis.” He thinks peer review might reduce this problem, but offering solutions is not his main focus (they are not likely to be adopted). Rather, he tries to illustrate the effects of poor analysis on the quality of constitutional argument and to policies adopted by the executive and judicial branches. In other words, bad articles can have real-world effects.

No one will deny that law reviews sometimes print bad articles with terrible arguments. Whether there is a clear advantage for peer reviewed journals in this respect might be doubted. Certainly Spitzer does not turn his critical gaze on political science journals in his quest for shoddy scholarship. He does argue that poor quality scholarship is less likely to be published in peer reviewed journals. But how to show this? I suppose he might have looked at citation counts of articles he thinks are bad. If poor work is cited favorably in law reviews, that would show the “hundred flowers bloom” approach of law schools is not self-correcting. But he would have to show the same thing doesn’t happen in political science journals.

Spitzer makes some valid points. I can hardly disagree with his specific argument that law professors do not always distinguish carefully between advocacy lawyering and scholarship because I have made this argument myself (as have other lawprofs). Once we move to his examples, doubts arise. The first is the advocacy by a few commentators of the idea that the president already has an inherent line item veto without the need for a statute or constitutional amendment. This near-crackpot notion got some attention in the Bush I administration, but Spitzer does not show it was accepted uncritically in law reviews. It seems to have garnered attention through a fortuitous chain of circumstances and was soon forgotten. The second example is Yoo’s advocacy of presidential war powers and a broad interpretation of the CIC clause. That’s my focus below. The third example is gun control and here I fear Spitzer undermines his credibility by contending that the traditional “collective” approach to the Second Amendment has no serious scholarly challengers. Spitzer is horrified by the case that became DC v. Heller (the book was published before Heller was decided), regarding its rejection of decades of militia-based collective precedent as a sure sign of a judiciary that has run off the rails. I believe Mark Tushnet in a recent book concludes that the historical argument between these two points of view is close. Spitzer will have none of it, treating Heller as an outlier case that proves how shoddy scholarship can gain a foothold in the law reviews and then become the law against all the evidence. I don’t believe his presentation will convince many law professors who hold that the individualist interpretation is well grounded in original meaning.

With respect to war powers, I think Spitzer is on to something, although the argument might not come out as clean and sharp as he would like. Let’s start by trying to extend Spitzer’s point about the differences between law reviews and peer-reviewed journals. Thinking also of dissertations, what does research and writing in the PhD disciplines have that legal scholarship lacks? Bearing in mind there are always exceptions, two standard elements come to mind: the literature review and the defense of methodology. Legal scholars can be so eager to demonstrate their bright new idea that they can forget to assess what has gone before. As many have noted, this leads to a staggering amount of argumentative repetition in law reviews and the reinvention of not a few wheels. And a lack of attention to methodology defense can lead to law professors claiming new insights when all they have done is an elaborate version of changing the subject. Both suggest legal scholars lack standards for writing articles when there has been past work in the field. This may be related to the reality that most law professors were never graduate students in the same sense as PhD candidates. When you are in law school, for the most part you are being trained to be a lawyer rather than a scholar. It seems likely that this would have some effects on legal scholarship.

I’m going to illustrate these points by examining Yoo’s argument, as expressed in his book The Powers of War and Peace, that the president has the power under the Constitution to initiate war. I’ve argued in previous articles that we have to be careful how we use history to address contemporary constitutional questions. We must ensure we are asking a question of history that history can answer. One reason the debate over war powers has been so contentious is that it does appear we are asking a question that members of the founding generation literally considered: how should the nation go to war? There is a clear asymmetry in the evidence on this question. Those who see Congress as having the power to initiate war under the “declare war” clause have the support of a long chain of consistent statements extending from the Federal Convention through the ratification debates into the 1790s and beyond attesting to three points: 1) the power to initiate war must and does belong to Congress; 2) we must beware of the abuse of executive power with respect to war and 3) the power to initiate war was deliberately not given to the president, leaving aside defensive responses to sudden attacks. The acceptance of these propositions arguably poses serious practical problems as we try to operate the contemporary constitutional system. This is a matter for theories of constitutional change. However, as a matter of history, the record is very clear.

So how have “pro-President” scholars like Yoo proceeded? Largely by constructing a series of historical what-ifs. What if members of the founding generation were greatly impressed by the division of authority in the British system of government? What if they sought to preserve the British balance in the U.S. Constitution? What if they believed as a matter of theory that foreign affairs powers were executive in nature? How would we then understand the allocation of war powers? As reviewers of Yoo’s book have noted, Yoo spends pages on life in the British empire while devoting comparatively little attention the actual course of debate at Philadelphia and in the state conventions. But even more important, what is notably lacking from these what-ifs is any endorsement of the fundamental concept of the survival of the British system by any member of the founding generation during the debates over the Constitution. In other words, the advantage of the pro-Congress side is that their arguments are actually endorsed by the framers. Yoo tends to rely on what the framers “must have” thought as opposed to what they actually said.

So here’s my promised point about the “new originalism” of original meaning that I wrote about last year at this time in “Rebooting Originalism.” There is a distinct tendency in the presidential power literature to embrace an implication of the turn to original meaning by emphasizing word choice (“declare”) and context (we’re all familiar with Locke, Blackstone and the British empire) over what actually took place in the process of constitution writing (the framers reordered what they learned from Britain and came up with new ideas). I’m not saying any prominent advocate of the theory of original meaning endorses this specifically. The logic of the theory demands we vacuum up meanings no matter where they occur. But that’s the problem! In actual practice in the area of presidential power, original meaning theory has tended to validate readings of the Constitution that either did not actually occur to anyone who wrote and ratified the document, or were outliers. How could this happen, you say? Remember advocates of original meaning don’t like looking for subjective intent (how the notables actually thought). They elevate “objective” evidence of original meaning over subjective intent. But, as Woody Allen once remarked, “Objectivity is subjective” (maybe it was the reverse – see Love and Death). This means we can look for evidence of meaning anywhere in the eighteenth century (or earlier) regardless of how closely it is connected with the debates that led to the Constitution’s adoption. The search for “objective” evidence of meaning allows the subjectivity of the scholar to do the picking and choosing among possible worlds of meaning. And that’s what we get – possible worlds of meaning, not analysis confined to the actual world in which the Constitution was adopted. Now back to Yoo.

The relevance of Yoo for Spitzer’s argument is that anyone previously familiar with the war powers debate who has read through the records of the Federal Convention, the ratification debates, and the relevant historical commentary would spot all of this immediately. If Yoo’s argument had been peer reviewed before appearing in the law reviews, he would have had to respond to some hard questions. At a minimum, he would have had to address the historical evidence point for point. Instead, once his views were published, they could be cited (including by himself when in government) and he was off to the races.

What’s more, once Yoo’s arguments were out there, he and other pro-presidential scholars could use their publication as proof that reasonable persons disagree over the status of the historical evidence. The use of this particular argument by advocates of an inherent presidential line item veto drives Spitzer up the wall. They seemed to argue: (1) there is some evidence in favor of an inherent veto, while (2) there is overwhelming evidence against, so (3) reasonable minds can differ, and thus (4) it is legitimate for a president to pick the position of the group he prefers. I think everyone can see that this sort of mega-bootstrapping is sophistry at best. But doesn’t it sound familiar? It should! Roughly the same pattern of argument has been used by the Bush administration multiple times in reasoning about presidential power in the context of the torture and NSA controversies. It’s a sort of “heads I win” (if you buy my argument), “tails you lose” (if you don’t we use the avoidance canon and I still win) approach that the administration used to spin the press that the arguments were at least equally balanced. Spitzer somewhat plaintively compares this to the case of creationism and points out, soundly I think, that to ask whether people are differing is the wrong question. He pleads for “objective analysis” and “empirical research” that must be based on “a careful weighing of legal, historical, and political evidence.” But is that truly what legal scholarship is interested in? If so, it is plain that the method of publication cuts against realizing these goals. And as we have seen with the Bush administration, this has real-world consequences.

Neal Katyal has gone on record in The New Republic (reviewing Goldsmith’s book The Terror Presidency) wondering if something hasn’t gotten out of hand given that Yoo’s reputation for publishing “innovative” and “pathbreaking” law review articles might have helped him get a job with the administration. The case of Yoo may have highlighted the loss of methodological consensus in constitutional law.

Would things be better if conlawprofs paid more attention to political science scholarship? I’m a fan of political science, so I would say yes, but you would see conlawprofs dragging their feet somewhat if the query became one of paying attention to what political scientists say about constitutional meaning. There would be questions about how a group composed largely of non-lawyers could have relatively better insights into the Constitution. Talking about peer review and the values of scholarship doesn’t get us anywhere because there is a disconnect in what the two camps write about. Political scientists gave up writing about the Court’s stream of decisions a long time ago. No contemporary political scientist has the doctrinal-treatise respect among lawprofs that Corwin once did because political scientists don’t earn any professional points for describing what the Supreme Court has done with respect to doctrine, wondering about what the Court is likely to do next, or, still less likely, trying to help the Court decide the next case. Political scientists aren’t interested in these topics, but lawyer-lawprofs are. And I’m sure we’ll stay interested. However, as I’ve tried to convey in this post, this fundamentally non-scholarly orientation leaves some very difficult questions open about the quality of legal “scholarship."


Posted 9:58 PM by Stephen Griffin [link] (12) comments

How to work around the election-inauguration hiatus

Sandy Levinson

In the modern world, there is really very little to be said for the 10-week hiatus between election and inauguration of the new president, especially if the newly elected president ran on a platform significantly in opposition to the incumbent. Decisions on foreign and military policy and, as we have seen this past week, even domestic policies, must sometimes be made quickly, and it is essential that the president making them (or trying to persuade others to accept them) have various kinds of authority, including the political authority that comes from popular approval in a just-concluded election. This concern was present in, say, 1968-69, 1980-81, 1992093, and 2000-2001, but not in 1988-89, where George H.W. Bush's election was in no way a repudiation of the Reagan Administration. It will certainly be present after November 4, especially if, as seems now widely to be expected, Obama wins a clear electoral vote (and, presumably, popular vote mandate).

So what can be done, without a constitutional amendment, to cure this particular deficiency in our Constitution? In one sense, it is surprisingly easy: As Norman Ornstein and Thomas Mann point out in their book The Broken Branch, there is no constitutional requirement that the Speaker of the House be a member of the House. So the "putting country first" response to Obama's election (and, under some scenarios, even McCain's election), especially if there is no real doubt about the electoral vote result, is for Nancy Pelosi to "resign" immediately and the House to select the person We the People have chosen as the new President as the new Speaker of the House. Then, putting country first, George W. Bush and Richard Cheney simultaneously submit their resignations, leaving both the presidency and vice presidency vacant. Under the Succession in Office Act, next in line is the Speaker. QED. Speaker of the House Obama (or McCain), who will, of course, have resigned his Senate seat in the interim, will succeed to the presidency immediately and then take the oath for the full four-year term on January 20, as the unamended Constitution provides.

There is one embarrassment in my suggesting this solution, however:

Akhil Reed Amar and Vikram Amar argued in a brilliant Stanford Law Review article several years ago that the Succession in Office Act is unconstitutional, that the successor must be an "officer" of the United States and that members of Congress are not "officers." More serious, I think, is their point that the Speaker and President pro tem of the Senate shouldn't be in the succession because that creates an incentive for an unscrupulous Speaker, particularly of the opposite political party, to mount a campaign to impeach the sitting president, especially if there is no vice president, in order to affect a party coup. I think there is much to this argument. I would strongly prefer that the succession be in the Cabinet, as was the case prior to 1947, when the current SOA was passed. But, to paraphrase Donald Rumsfeld, you work with the SOA in have, not the one you would prefer to have.

Some of you may remember that Sen. Fulbright suggested that Harry Truman name a Republican as Secretary of State and then resign, following the Republican takeover of Congress in 1946, which earned Truman's immortal reference to the Arkansas senator as "Sen. Halfbright." I don't think my suggestion is really the same as Fulbright's, for the obvious reason that a number of factors might explain the takeover of the Congress by the opposite party besides opposition to the president, whereas a presidential election, for all of its own ambiguities, is "crisper" in this regard. Also, we're not talking about a sitting president giving up two years of his term, as Fulbright was, but, rather, the last ten weeks, for the good of the country in order to make sure that there is both a legal and politically legitimate and "authoritative" government in perhaps perilous times. (Obviously, I would also support some mechanism to fire a president in mid-term, but my proposal is entirely independent of accepting any such view.)

Unconstitutional or not, the Succession in Office Act is what we have, and it does supply a solution to the problem of what might be termed the "dead-duck presidency." One might imagine that Bush and Chency would resist the idea, but on what grounds, other than a sheer desire to remain in (legal) power regardless of what would best serve the national interest? (Obviously, one would expect McCain and Obama to promise to honor this "precedent" should they lose in 2012, so that a new "constitutional convention" in the British sense would avoid the need for even a constitutional amendment.)

Posted 8:37 PM by Sandy Levinson [link] (10) comments

Update: Revising the Powers of the Secretary of the Treasury

Rick Pildes

The just released latest draft (non-final) of the bailout bill reconfigures the relationship of the Secretary of the Treasury to the new Financial Stability Oversight Board. From the structure, there is reason to think that this revised structure is in response to the kind of concerns raised in earlier posts.

The revised Section 104 now takes away any legally binding power the Board would have over the Secretary. Instead, the new Board has the power to make "recommendations" to the Secretary, and then the Board is given the power "to ensure that the policies implemented by the Secretary are in accordance with the purposes of this Act; in the economic interests of the United States; and consistent with protecting taxpayers, in accordance with [other provisions of the Act]." The memberships of the Board and its executive committee are also changed slightly, though not in ways relevant here.

These new provisions are obviously much more vague than in the prior draft. I view this as "studied ambiguity" about the relationship of the Board to the Secretary, and I think that ambiguity is probably wise. This structure will encourage a high degree of discussion, negotiation, and sharing of views concerning major decisions between the Secretary and the executive committee of the Board. The Board will also be able to be a fire alert for Congress and the public should a Secretary be moving in directions that concern the Board. But this avoids a direct confrontation with separation of powers principles by avoiding giving the Board decisive, formal legal control over the Secretary. Congress and the public is likely to get meaningful oversight of the Secretary's decisions, which appears to be the goal, without provoking a direct confrontation with separation of powers principles by formally subordinating the Secretary to the power of this new Board.
Posted 5:14 PM by Rick Pildes [link] (1) comments

A Congressional Overseer for the Secretary of Treasury

Rick Pildes

A crucial element to enabling the bailout bill to go forward is the creation of a new Board, the Financial Stability Oversight Board, that now sits over the Secretary of the Treasury for purposes of implementing the Act. This Board (really, an executive committee of the Board) has the power to “direct, limit, or prohibit" the activities of the Secretary ... to the extent the Committee determines that such activities are not in accordance with the purposes of this Act." This committee will consist of the Chairs of the Fed. Reserve Board, the SEC, and the FDIC. Thus, this group of officials can dictate to the Secretary of the Treasury which actions he can or cannot take to carry out the Act.

I blogged elsewhere about some of the issues this unusual structure creates. See http://electionlawblog.org/. I want to expand on the initial point so that readers have a fuller understanding of the nature of the issues. American constitutional law has recognized for many decades that Congress has the power to create independent agencies. An agency is independent when Congress designs the agency so that the President does not have complete power to control the agency because the agency heads, unlike members of the cabinet, do not serve at the pleasure of the President. The formula for insulating agency heads from plenary presidential control is for Congress to permit them to be removed only for certain “good cause” reasons that are defined in a statute.

But while Congress can create independent agencies, there has also always been understood to be a limit to Congress’ ability to do so. Although the Supreme Court has never had to define this limit with any precision, the general understanding, reflected in both doctrine and academic analysis, has been that there are at least a small core of cabinet-level officials whose unfettered loyalty to the President is so essential to the role the Constitution creates for the Presidency that Congress cannot insulate this core set of officials from plenary control of the President. This issue came to head in the post-Civil War era, when Congress tried to prevent the President from being able to fire the Secretary of War (as the Secretary of Defense was then called) in the Tenure in Office Act. The immediate precipitant to President Andrew Johnson’s impeachment and near conviction was his refusal to comply with this Act. Over time, a virtual consensus has emerged that Johnson was correct that Congress’ power to create independent actors has to stop, at least, at positions like the Secretary of Defense.

To the extent there are a core group of actors that must remain completely subject only to the President’s control and judgment, I think the Secretary of the Treasury must come under this principle. As noted, there is no precise definition which actors constitute this core and the answer cannot be based on status as a member of the “cabinet;” the Constitution does not create or define a “presidential cabinet” and the statutes creating cabinet-level entities have changed over time. But I would think, at the least, that the four original departments of government that Congress created originally – and that were thus recognized from the start as essential to implementation of national law – would have to be in this core. That means the Secretaries of Treasury, State, Defense, and the Attorney General are the essential arms of the President that Congress cannot intrude upon. If a law were to permit the President to fire the Secretary of the Treasury not for any reason at all, but only for “good cause,” I think that law would likely be unconstitutional, and that most scholars would agree.

That’s the background for understanding how unusual a Board is that sits atop the Secretary of Treasury and that can veto and control his or her decisions. True, the Board cannot do this across all the issues the Secretary addresses, only those that arise under the bailout bill. When Congress created the Independent Counsel and made that investigator/prosecutor independent of the President’s plenary control, the Supreme Court upheld the Act because, said the Court, the Independent Counsel only performed “narrow functions.” So an inroad to this extent, in that context, of the President-Attorney General relationship was constitutionally acceptable. Perhaps, since the bailout bill deals with a specific set of issues, we should also view this new Board as only performing “narrow functions” too – although, given how much appears at stake for the economy, this might not be all that convincing (indeed, given how profound the effect on government of investigation of the President can be, one wonders whether the Court today would still consider even an Independent Counsel to be performing only a “narrow function’).

In essence, Congress has created a structure in which the Secretary of the Treasury now has something of two masters. On most issues, it is the President. But on issues related to the bailout bill, it is the new Board. If the President had complete control over who the members of the Board were, this would not be important. Even if the Secretary now had a boss, as long as that boss remained fully under the control of the President, the basic separation of powers issues would be satisfied: the President would still have effective, complete control over one of his core agents, the Secretary of the Treasury. But this is not the case with the executive committee of the Board. It’s members must be, as defined in the bailout bill, the Chairs of the Fed, SEC, and FDIC. For now, Congress has given the President the power to choose who those Chairs are, but Congress could take that power away at any time (and I do not see an argument that the President has the inherent constitutional power to decide who the Chairs are of independent agencies). Thus, the Secretary of the Treasury will now have two masters, one of whom, this new Board, is not itself under the full control of the President.

The concern I raise is not one that would be recognized only by those who have the strongest views about the constitutional imperative of a “unified executive branch.” Those with the strongest views do not accept the constitutionality of independent agencies, period. But even those who agree with the Court and longstanding practice that Congress can create independent agencies have always recognized that, at some point, there is a limit. Up until now, most have thought that limit would be crossed if Congress sought to give a small set of core executive officials some other master than the President alone. That is why this novel structure of power in the bailout bill is worth noting and considering carefully.

Perhaps in another post I will discuss how courts are likely to respond, should legal challenges to this structure arise.

Posted 3:32 PM by Rick Pildes [link] (6) comments

Taxi to the Dark Side: Monday at 9 p.m.

Scott Horton

One of the major breakthroughs of the first McCain-Obama debate on Friday night passed with almost no notice. Both John McCain and Barack Obama, in characterizing their opposition to the Bush Administration’s interrogation program, called it torture. To those who have tracked this question with any care, there is no doubt whatsoever that the Bush Administration pursued torture as a matter of policy. However, ferocious blowback from the Administration has up to this point intimidated the American media from calling things by proper names. As the Bush Administration now enters into its final meltdown, the perfect time has come to examine the moral corruption that has long festered right under the surface of what passes for national security policy.

On Monday evening at 9 p.m. (ET/PT), 8 p.m. (CT), HBO premiers this year’s Oscar-winning documentary, “Taxi to the Dark Side,” in which I appear. Don’t miss it. Here’s a recent interview of producer Alex Gibney with MSNBC’s Rachel Maddow in which Alex explains why the issues treated in “Taxi” are current and will only grow in relevance in the coming months:


Posted 11:19 AM by Scott Horton [link] (16) comments

Our Constitution Gives Us the Worst of Both Worlds

Sandy Levinson

I have been posting, perhaps tiresomely, on the extent to which our Constitution--and the realities of modern life--put in office a de facto "constitutional dictator" with regard to some domains, particularly military and foreign policy. I will not bother repeating myself on this, though I note that Nick Kristof has a fine column in today's NYTimes, titled "Impulsive, Impetuous, Impatient," on how we would probably all be dead had John McCain been in the Oval Office in 1962 during the Cuban Missile Crisis, when we really first experienced, in its full meaning, the extent to which our lives were in the hands of a single "Decider" (who, fortunately, rejected the advice of most of his McCain-like "wise men" to attack Cuba and precipitate World War III). But I want to call your attention to another fine article in today's Times, by Peter Baker, titled "Waiting to Lead (or Not)," which points to two grievous defects in our Constitution. One of them, of course, I also continue to harp on, which is our inability to fire a president in whom we've lost confidence. So we have the paradox that a person who has near-dictatorial legal powers in some areas has almost no "authority," of any kind, to persuade anyone with regard even to vital policies. Thus Baker writes:

. .. . [T]here were three not-quite presidents sitting at the table — one who still technically has the job but can’t get anyone to listen, and two others who have everyone’s undivided attention but don’t yet have the job.

The session with President Bush, Senator John McCain and Senator Barac Obama illustrated just how much power at the top of the nation’s political hierarchy has already fragmented, leaving a leadership void that complicated the path to consensus last week over the deepening turmoil on Wall Street. If Mr. Bush thought summoning the two major-party nominees would neatly yield bipartisan agreement behind his proposed $700 billion bailout, he quickly learned how steep that climb is with an election around the corner.

What is left, though, is uncertainty about whom to follow. “There’s no leadership; nobody’s leading,” said Pat Caddell, who was an adviser to President Jimmy Carter. “The country’s not looking to him to lead,” he said of Mr. Bush. “And the Congress couldn't lead an Easter egg hunt.”

The problem for Mr. Bush is that he has all the levers of the Oval Office without all of the authority. Even some of his own advisers concede that the country long ago tuned him out, and last week’s revolt by House Republicans against his initial economic plan demonstrated his trouble asserting command even of his own party. As Ed Rollins, the White House political director under Ronald Reagan, put it cruelly but crisply on CNN on Friday: “This isn't a lame-duck administration. This is a dead-duck administration.”

Can anyone, of any political stripe, really argue that we're being well-served by the constitutionally-mandated continuation, for even one more day, of George W. Bush in the Oval Office? But, of course, that may not be the worst of it. Baker also notes that George W. Bush will remain president even after he has been truly and justly repudiated on November 4 by the election of Barack Obama (or, for that matter, the John McCain who ever more proclaims that "I'm a maverick who hates Bush as much as you do"), since the Constitution postpones the inauguration of a new president until January 20. Those of you who just love the Constitution in its present form should consider that the original Constitution put off inauguration until March 4 (and, in postponed the first meeting of newly elected Congresses for13 months). These lunacies were addressed by the 20th Amendment, which established our current inauguration day and begins the first session of newly elected Congresses only seven weeks after election. So there is actual a model in our own constitutional history for addressing constitutional deficiencies. Past generations, sometimes led by such major national figures as Woodrow Wilson and Teddy Roosevelt, have been willing to ask how well the Constitution serves the nation (which is, after all the point of the Constitution).

January 20 is far closer, literally and figuratively, to March 4 than to November 4, and the costs of postponing the exit of the repudiated incumbent are far higher now than they were even in 1932-33, when the US had no effective government with regard to confronting the Great Depression. I applaud Baker's very fine article, but I am dismayed by the fact that, at the end of the day--or the article, our defective Constitution is taken as a given, and not something to be addressed in the same way, for example, we are finally addressing the failures of our (non-)regulation of financial markets. Why can't we have a serious national discussion about whether we also need reform of our most basic "regulatory institution," the Constitution?

What send me up the wall and makes me insufferablel to some of you is not that my ideas have been heard and found wanting, but, rather, that there is simply no serious national discussion about the Constitution at all, save for devotees of this blog and fans of Larry Sabato. I wish that more of you agreed with me, but I actually feel that I've gotten a fair hearing from those of you who don't. My complaint isn't with you. Rather, it's with the national punditry, including many writers I admire, who don't even consider the role played by the Constitution in our present unhappiness. They are no better than the "regulators" who were blind to what was going on at Enron or AIG. Their operative mantra was "The "free market" is wonderful, so let's leave it to its own devices." Well, look where that's gotten us. But we're doing the same with regard to another mantra, "Our Constitution is wonderful, so let's leave it (and us) to its own devices."

Posted 10:35 AM by Sandy Levinson [link] (16) comments

A description of constitutional dictatorship:?

Sandy Levinson

Tomorrow's New York Times Book Review has an extensive review by Jill Abramson of Bob Woodward's The Final Days. There is much to ponder about regarding similarities between Mr. Bush and Sen. McCain in terms of their leadership styles, including inordinate confidence in their own rectitude and a tendency toward impulsive decisionmaking. But I'm most struck by the following:

“In the end, one lesson remained,” Woodward concludes, “a lesson played out again and again through the history of American government: of all the forceful personalities pacing the halls of power, of all the obdurate cabinet officers, wily deputies and steely-eyed generals in or out of uniform, of all the voices in the chorus of Congress clamoring to make themselves heard, one person mattered most.”

Perhaps it's an analytic truth that in any system of government "one person [will matter] most," but isn't it the case that we've carried this to excess in the United States, given that that person will almost always be the President, whether or not he is thought to be competent? Our presidentialist system, whatever its merits in 1787 (when, of ocurse, everyone assumed that George Washington would become the first president), carries with it extraordinary dangers if there is no way of firing a president who is incompetent. Is it fair to offer Woodward's comment as a good first-cut description of what is meant by a "constitutional dictatorship," espcially if the person who matters most has the authority to trigger war and cause death, mayhem, and destruction?

Yes, it's true that Mr. Bush was elected in 2004, even after his incompetence was manifest to many, but a contributing reason was the unwillingness of those around Bush to tell the American people the truth about what he was really like. Woodward apparently describes a White House full of fawning courtiers or people who are simply afraid to stand up to the Great Decider, including Colin Powell (sadly). Perhaps it is best to stick with the system we have, including a rigidly fixed-term presidency so long as the President doesn't commit a "smoking-gun" crime, but shouldn't we recognize that this comes at enormous costs, both to us and to the rest of the world, so we should be damned clear about what benefits outweigh the costs?

Needless to say, no such questions were asked last night in the debate, because we take the four-year tenure in office as undiscussable given, and it is certainly quixotic to expect Obama and McCain to offer any criticisms of the constitutional structure of the office for which they are running. But perhaps one might discuss the issue of presidential power itself, including on particular power of the president: to pardon. (Many anti-Federalist opponents of the Constitution focused their criticisms on this power, which they rightly associated with monarchical power in effect to suspend the operation of ordinary law with regard to royal favorites.) Might not Jim Lehrer have asked McCain and Obama their views about the potential pardons, by Mr. Bush, of everyone linked with torture? Presumably he has the constitutional authority to do so. That's an easy question. But would they both agree that any such use of his power is to be condemned? (Or would that be an essential step in "putting the issue behind us and preventing a 'political witch hunt'"?) And, if he does exercise his pardoning authority, what would their views be about appointing, presumably with congressional authorization, a National Commission of Inquiry with a significant budget and subpeona authority to study exactly how it is that the United States has become synonymous, all over the world, with torture? This is surely relevant, incidentally, to understanding some of difficulties in the arena of foreign policy, the topic of last night's "debate."

John McCain wants to appoint a national commission to study the origins of the ecoomic crisis. Why not a similar commission to study the origins of our moral/political crisis forged by David Addington and his minions in the Bush Administration who took the US very much into the Dark Side? Sen. McCain has a generally admirable record of standing up against the devotees of torture in the Bush Administration. So why wouldn't he support a commission, especially in circumstances where no one could go to jail given the presumptive pardons issued by Mr. Bush? Ditto Obama.



Posted 6:36 PM by Sandy Levinson [link] (21) comments

Why Obama ended up winning the first debate

JB

Actually, I thought the debate was pretty much a draw. There was hardly anything memorable in it, although it was truly a breath of fresh air to listen to a debate between two presidential candidates who focus on issues and solutions, and seem to know more or less what they are talking about. But by now I've learned that I often respond to different things than many other voters. Who I personally think won the debate doesn't really matter. What matters is what other people think. And apparently, most people polled seem to think that Obama clearly won.

Aside from all this, Obama won the debate for two reasons.

First, he's ahead. Because he's ahead, he doesn't have to win outright to succeed; McCain has to produce a game-changing moment. McCain did not do that. Indeed, if anything McCain seemed to be spending much of his time annoyed at Obama, refusing to look at him or confront him directly, trying as much as possible to avoid blowing up in anger. He succeeded at that. What he did not succeed at was changing the momentum of the race. Hence Obama wins.

Second, Obama won the debate because this election has largely been a referendum on whether the Democrats and Obama are up to leading the country after the failures of the last eight years. Obama is not a known quantity to many voters. They need to establish some comfort level with him; they need to believe that he is sufficiently cool headed in a crisis that he won't do something rash or foolish. In this sense, Obama is in much the same position as Ronald Reagan was in 1980. Carter tried to portray Reagan as loony, out of touch and dangerous. He succeeded for a time. However, Reagan demonstrated by the end of the campaign, and particularly at the presidential debates, that even if he wasn't as well prepared as Carter on some issues, he was not frightening at all. Once Reagan did this, he began to break away from what had previously been a very close race.

I think something like this has been happening in the past week or so, as the economy has dominated public concerns (an area in which McCain admits he is not very well-versed and in which Obama is far more trusted). The effect of the first debate was to portray Obama as cool headed, thoughtful, prepared, and able to think well on his feet. That is to say, he came across as competent and reasonable, even if you disagreed with what he said substantively.

In contrast, McCain's antics in the past week or so have tended to paint him as increasingly less cool headed, more apt to panic in a crisis and far more of a high stakes gambler.

Look at his recent behavior: His choice of Sarah Palin who he barely knew; his statement that the economy is fundamentally sound followed by a quick 180 turn to the assertion that the economy was headed for a great depression if we do not act immediately; his suspension of his campaign (which turned out not to be very much of a suspension at all); his attempt to get Obama to cancel the first debate which increasingly seemed like a desperate stunt; his interference (whether intentional or not) with negotiations in Washington; and his quick about-face and his agreement to debate after it became clear that no deal on the bailout was forthcoming and that he would be blamed if he didn't show up to debate. All of these actions make McCain look at turns incautious, confused, unprincipled, panicked and incompetent.

The effect of the last week, and Obama's cool demeanor (the New York Times even ran an egregious story complaining that Obama was too cool and level headed) all helped to portray Obama as prepared for the Oval Office. McCain's basic goal in the campaign has been to prove that Obama was dangerous, that he was a risky bet, that he was not reliable. In the past week, however, McCain has systematically undermined this strategy; he has unwittingly done as much as any one could to portray Obama as a safe bet, at least as safe as McCain himself. It is an astonishing display of strategic incompetence, one for which Obama will probably forever be greatful. Because McCain has, against his own interests, repeatedly made Obama appear steady, reliable, and prepared for the Presidency, Obama won the first debate.

Posted 1:25 PM by JB [link] (27) comments

Time to put him out to pasture

Sandy Levinson

No, not John McCain. Rather, Jim Lehrer, who, we're informed has moderated eleven presidential debates since 1988. That's enough. If there were any reason to believe he were particularly good at it, that would be one thing. But he isn't. He asks "thoughtful questions," as defined by the Washington establishment, and has no instinct for any kind of jugular. He asked a couple of followup questions when the candidates clearly didn't want to answer his question, such as what programs would be sacrificed to pay for the bailout, but that really was it so far as probing was concerned.

I'm still furious at him for failing to ask a single question about Abu Ghraib in 2004, which helped to take the issue of torture off the table until George W. Bush was kind enough to nominate Alberto Gonzales for AG after his election. He muffed it again on torture this year: Both Obama and McCain declared their opposition to torture, but, of course, McCain has refused to support banning torture by the CIA and other non-military agencies. And Obama, who already has most of the anti-torture vote, has no incentive to call McCain on this because I suspect that many undecided voters may actually support torture by the CIA. So it was up to Lehrer to press the issue when it emerged, and, of course, he didn't. And, while McCain was telling us the benefits of world travel and meeting foreign leaders, Lehrer left entirely unasked why in the world he picked the tragi-comically unprepared Gov. Palin to be one heartbeat away. Does he really think she's equipped to take over should anything happen to him? Enquiring minds would have been interested in McCain's answer, but Jim Lehrer was apparently too incurious to ask it (or perhaps he thought it would be too impolite).

And, of course, the debate feeds my own obsession about our treating the President as our "constitutional dictator." Even I recognize that, along with the "Great Decider," there's also an administrative apparatus. So why not ask them if they're prepared to name, say, five or six people they are considering for Secretary of State or Defense? Why do we absurdly continue to elect presidents without any real knowledge of what their administrations will be like. Or Lehrer might have asked them the best book on foreign policy they've read in, say, the past year. McCain would undoubtedly have picked Terror and Consent, by my friend Philip Bobbitt, which could certainly serve as the basis for further questions by an informed moderator.

I never want to see Jim Lehrer moderating a debate again. I have no reason to think he's a bad person, and, who knows, perhaps the News Hour is pretty good. (As should be obvious, I rarely watch it.) But it's way past time to find someone new to moderate the debates. Far, far better if the moderators over the three sessions included people like Andrew Sullivan, Peggy Noonan, Paul Krugman, EJ Dionne, or Charles Krauthammer (and maybe even Bill Kristol), which might produce some real intellectual sparks instead of the Lehrer, Bob Schieffer and Tom Brokaw, with their insufferable tones of high-minded and polite blandness.



Posted 8:11 AM by Sandy Levinson [link] (24) comments

Corroboration on fears about John McCain

Sandy Levinson

I must say I was much relieved, given my fears that I had indeed gone over the top in my criticism of Senator McCain, to read some reactions to McCain my regular and more sober pundits. Consider John Judis, in a column tellingly entitled "Putting Country Last":

I never doubted . . . that McCain's motives in pushing America into war were honorable. Nor do I question his motives in pushing Georgia into NATO or in rattling the sabers against Iran. I question his judgment and wouldn't want him as president. But I do question his motives in inserting himself into the attempt by the Treasury Department, Federal Reserve, and the Congressional leadership (excluding the usual suspects from the Republican House delegation) to fashion a plan for preventing a Wall Street crash. He has shown a willingness to put the success of his campaign ahead of the country's welfare. And it's not over a relatively minor matter--like offshore drilling or creationism in schools.

I know there are economists, some of whom I respect, that think this financial crisis will blow over, that it's a crisis in the financial superstructure that won't ultimately affect the country's industrial base. I have never understood the post-1980 stock market very well, but I know something about economic history, and I know that at a certain point, a financial crisis can get out of hand and lead to a credit crunch that will depress the industrial base and set off a vicious cycle of unemployment. I also know a little bit about international economic history--enough at least to appreciate what would happen if nations began to abandon the dollar the way they abandoned the British pound eighty years ago. As Paul Krugman--who has been writing about the mortgage mess for years--has argued, it is not worth taking the chance that this crisis will blow over.That's a long way of saying that it is simply unpatriotic--it's an insult to flag, country, and all the things that McCain claims to hold dear--for McCain to hold this financial crisis hostage to his political ambitions. McCain doesn't know a thing about finance and is no position to help work out an agreement [emphasis added]. If we do suffer a serious bank run, or a run on the dollar, it can be laid directly at his feet. As I said to friends last night, if McCain had been president at this point, I would have wanted to impeach him.

But Judis is a Democrat, as is E.J. Dionne, who wrote a caustic column on McCain's "Crashing the Party":

McCain jumped into this game in the fourth quarter. Many of the players on the field, caked in mud and exhausted but determined as they approach the goal line,wonder why this new would-be quarterback has suddenly appeared in their midst.

McCain could yet play a constructive role by rounding up votes from restive Republicans. Oddly, the biggest obstacle to a bill may not be Democrats but Republicans who refuse to go along with their own president. And--yes, there is an election coming--Democrats will be wary of going forward unless a substantial number of Republicans join them.

But McCain's boisterous intervention--and particularly his grandstanding on the debate--was less a presidential act than the tactical ploy of a man worried that his chances of becoming president might be slipping away..

So consider Peggy Noonan's column in this morning's Wall Street Journal, entitled "Party of One." She presumably can't be castigated as someone unsympathetic with the Republcian Party and its interests. She should have a certain "authority," so to speak, with our Republican friends: So consider the opening paragraphs of her piece:

The impetuous young man threw the long ball, suspending his campaign and flying to Washington to save the day. The more measured and less excitable older man said easy does it, let's unite and issue a statement together. The young man seemed decisive if tightly wound, the older man unruffled, if cloudier in his remarks.

Wait, I have it wrong, it's the older man who was dramatic and impetuous, the younger man who was deliberative and temperate!

What a week, with all categories upside-down and out the window.

How does the McCain gambit play out? Nothing wrong with his decision: We are in a crisis, why not return to Washington and try to help? But it's also true that in moving unilaterally, and claiming at the same time he was just trying to make things less tackily political, he made things more political, or rather more partisan.

Ms. Noonan also had some interesting things to say about Sarah Palin, but, for once, I'll focus only on one thing at a time. In any event, I feel better about my own judgments about Sen. McCain's character and his fitnes to be our president/constitutional dictator.




Posted 6:04 PM by Sandy Levinson [link] (17) comments

Not So Mighty Mouse

JB

It wasn't supposed to happen this way. Democrats and Republicans, Congress and White House, were supposed to be deadlocked, unable to figure out how to resolve the country's economic crisis. Or they were supposed to be collectively frozen in terror and indecision. John McCain, putting "country first," was supposed to sweep into the nation's capitol, postpone the Presidential debates, and like a modern day Jesus, throw the money changers out of the temple. He would speak truth to power, change the way things are done in Washington. He would be bold. He would be daring. He would get things done. A consensus would form around his bravery where none had existed before. America would be saved.

Instead, it appears that President Bush and the Democratic Congress had pretty much agreed to the basic terms of a deal before McCain arrived. Bush called Obama and told him to get to Washington for a bipartisan meeting at the White House where the new deal would be blessed. McCain, who admits he knows little about the economy, sat in the meeting, saying nothing. Then, prodded by Obama to say something, he mumbled that he supported the basic principles of his conservative Republican colleagues in the House. These conservatives disliked the Paulson plan; and they disliked the compromises that Bush had made with the Democratic leadership even more.

Just like that, the consensus that seemed within everyone's grasp dissolved. McCain had thrown a monkey wrench in the works. The Democrats would not stay in if Bush couldn't keep most of his own party in the House in line. They wanted a bipartisan agreement-- one that would give them political cover-- or nothing. Whatever McCain's actual intentions, it now seemed as if McCain had come to Washington just so he could align himself with conservative Republicans and vote no. Furious, Democrats thought they had been sandbagged, betrayed by McCain for a cheap photo op. Treasury Secretary Henry Paulson, on bended knee, asked House Speaker Nancy Pelosi not to walk out and tell the media that the talks had imploded; she said, in effect, go talk to your Republican friends in the House. I'm not going to pull your chestnuts out of the fire.

This was not how it was supposed to happen. McCain was supposed to be a hero. He was supposed to put country first, show guts, show economic expertise, show leadership, bring the two sides together in a great act of vision and daring. He was supposed to bring order out of chaos, and not the other way around.

All we can say at this point is: You're doing a heck of a job, McCain-ie.
Posted 8:11 AM by JB [link] (31) comments