A Theory of Constitutional Workarounds

JB

Sandy's latest post has inspired me to say a few words about the larger questions posed by his general critique of the Constitution's "hard-wired features." In reading the drafts of his excellent book, Our Undemocratic Constitution, it occurred to me that several of the examples of constitutional perversity he offered were not actually "hard-wired" at all, because there were various workarounds. Some problems rested on judicial glosses that could change like so many other doctrines have changed in the past. And some could be alleviated through ordinary Congressional legislation, the advise and consent process, the Twenty-Fifth Amendment, and so on.

In assessing whether a "hard-wired" feature of the Constitution is really "hard-wired" or not, we have to ask what it would take, short of Article V amendment, for various parties to agree to work around it. Then we have to consider what the veto points and costs of the work around would be. Finally, we have to ask the most important question: would the costs of the work around and the veto points that might block it be less arduous than the actual Article V amendment process or calling a new constitutional convention?

Those who have been schooled in American law schools in the past thirty years will recognize this line of reasoning as in the spirit of Ronald Coase. Given laws that create an entitlement, we ask how easy it is to bargain around the entitlement, and whether transaction costs prevent the bargain. In this case, the perverse rule that bequeaths power (or the ability to block others) is the "entitlement," and "bargaining" involves putting together a political coalition within the existing system to create a workaround. The equivalent of transaction costs are the costs of putting together the coalition to create the workaround, plus the costs of monitoring the bargain, preventing defection, and so on. We must also ask about the infelicities and difficulties created by the workaround which may not be exactly equivalent to what an amendment or a new constitution would produce.

The last step is to ask whether the workarounds, with all their costs, are less costly or less arduous than using Article V. If they are, this does not mean that the Constitution is fine just the way it is. Rather, it means that workarounds may be a better solution than Article V. At some point, workarounds will fail to address serious problems, and the cumulation of ad hoc workarounds might cause unexpected side effects that are very undesirable. Nevertheless, until that point is reached, it might be better to look for workarounds. Moreover, looking for workarounds might give us a better sense of what the strengths, weaknesses, and flexibilities of our constitutional system really are.

So take Sandy's latest example: In its final days, the outgoing Administration rushes through new administrative regulations that the next Administration opposes that will be difficult to overturn. Sandy attributes this problem to our choice of a Presidential system with a long transition between election and inaugural.

The key question to ask, it seems to me, is whether the problem is caused by the hard-wired features of the Constitution or the failure to adopt a plausible work around. (This is the analogy to the Coasean question of "what is a cost of what.") That is, is the harm caused by the hard wired feature or by the failure of political actors within the system to "take appropriate precautions" to avoid the alleged harm? If there is a plausible work around, how difficult would it be to create it? Who would be able to veto the changes, and why would they do so, and would the costs of overcoming these difficulties be less than or greater than amending the Constitution. If they are less this does not mean that the Constitution is without flaws, but rather that the system is not as broken as we think it is.

I can, off the top of my head, think of a number of possible workarounds. Since the power to create administrative rules comes from Congress's delegation of rulemaking authority, and the judicial power to review them is shaped by the Administrative Procedure Act, Congress could amend both the existing delegations and the APA in one omnibus bill. It could impose a moratorium on rulemaking between the election and the inauguration (or 30 days before the election and inauguration, if you like). It could require administrative agencies to issue special notices to Congress of any rules they may seek to create in the last 60 days before an election, and it could allow any party affected by a proposed regulation to go to court to enjoin a proposed rule making that threatened to fall within the prohibited period.

Others could tinker with these proposals to make them better, and I invite you to do so. In any case, the cumulative effect of these changes, and others like them, would force greater transparency and democratic accountability. They would place new rulemakings in the public eye and force the candidates for president to consider them (and possibly run against them) in the upcoming election. If an outgoing President did not want to hurt the chances of his party during the election, he would refrain from last minute rulemaking changes of the sort that Bush is now contemplating. Instead, he would be required to begin his administrative endgame (for that is what it is) earlier in the year before he leaves office.

These changes could be passed through simple legislation and would offend neither the idea of a "unitary executive" nor the delegation doctrine: they would merely lessen the scope of Congressional delegation and give the courts the power to enforce the terms of that delegation.

Of course, many people might object to the changes. But the difficulty of overcoming those objections is surely less than that of obtaining an Article V amendment that would limit the rulemaking process, or that would collapse the time between election and inauguration.

Does this mean that there is no problem with our current scheme of transitions? Surely not. Rather, it is that the problems are not as great as we might have thought, and that they are not really "hard-wired."



Posted 10:17 AM by JB [link] (56) comments

Our Toxic Constitution

Sandy Levinson

I couldn't restrain myself when I read Robert Pear's article to appear in the Sunday Times, which begins, "The Labor Department is racing to complete a new rule, strenuously opposed by President-elect Barack Obama, that would make it much harder for the government to regulate toxic substances and hazardous chemicals to which workers are exposed on the job." The last remant of the mendacious "compassionate conservatism" that we were served up in 2000 (in 2004 sheer fear and the dishonesty of the Swift Boat ads was enough to elect Bush) is the use of presidential power--which has, I continue to submit, elements of constitutional dictatorship inasmuch as there is not a semblance of accountability re the Bush Administration's actions short of a long and expensive corrective administrative process--to assure that businesses will continue to be able to exploit their most vulnerable employees. "Public health officials and labor unions said the rule would delay needed protections for workers, resulting in additional deaths and illnesses."

To be sure, I realize that were a president-elect to take office the very next day, we would still bear potential costs of a lame-duck administration engaging in last-minute actions. But, among other things, these actions would potentially become burdens around the neck of the candidate of the President's own party--assuming he had the slightest interest in the welfare of his political party (as distinguished from the welfare of the entire nation). I must say that considerations such as this lead me more and more to believe that presidentialism is a system that might once have worked quite well in the US but, in the 21st century, has less and less to commend itself (even as I am completely overjoyed at the coming inauguration of Barack Obama).

In any event, I do think that Jack and other defenders of the extended transition should factor into their analysis the costs of such last-minute administrative shenanigans.



Posted 9:10 PM by Sandy Levinson [link] (37) comments

Recourse, Of Course

Ian Ayres

Crosspost from Freakonomics:

Martin Feldstein has written another Wall Street Journal op-ed (here’s an NBER version) extending his idea for stabilizing home prices. Steven Levitt has written about Feldstein’s basic idea before. The basic idea is for the government to provide low-interest loans to mortgage holders in return for mortgage debt:

The federal government would offer any homeowner with a mortgage an opportunity to replace 20 percent of the mortgage with a low-interest loan from the government, subject to a maximum of $80,000. This would be available to new buyers as well as those with mortgages. The interest on that loan would reflect the government’s cost of funds and could be as low as 2 percent.

The Feldstein proposal has a real advantage relative to Luigi Zingales’s ingenious “Plan B.”

Zingales proposes that Congress pass a law to give a recontracting option to all homeowners living in a zip code where housing prices have dropped by more than 20 percent. If exercised, the Plan B option will write down the face value of the mortgage by the same percentage that the area housing price has dropped and, in return, the homeowner will give the mortgage holder 50 percent of any appreciation at time of sale. (Zingales points out that mortgage holders will do much better under this program than with foreclosures, where transaction costs eat up a hefty proportion of the market value.)

Feldstein, like Zingales, reduces the incentives for homeowners to default on their mortgages. But Feldstein avoids the sticky question of bank approval. Zingales’s plan tries to do this by legislative fiat. But a law that forces mortgage holders to accept a write-down of principle might violate the Constitution’s Takings Clause. Indeed, another parallel between 1932 and 2008 may be how the court responds to legislative innovation. (Here, Chief Justice Roberts plays the role of Charles Evans Hughes.)

But the Feldstein proposal has a couple of real disadvantages as well. Feldstein emphasizes that the government loan would be a “recourse” loan, giving the government the right to look to homeowners’ wages and other assets. Feldstein is critical of American exceptionalism with regard to making mortgages non-recourse:

The “no recourse” mortgage is virtually unique to the United States. That’s why falling house prices in Europe do not trigger defaults, since the creditors’ potential to go beyond the house to other assets or to a portion of payroll earnings is enough to deter defaults. Officials and investors in other countries are amazed to learn that U.S. mortgages are no recourse loans. It is indeed surprising that this rule in the U.S. applies to home mortgages but not to any other type of loan.

Feldstein’s proposal, however, goes beyond merely making the government loan “recourse.” Feldstein would not make the loan eligible for relief in bankruptcy.

To me, it’s an open question whether many homeowners would accept the bribe of a subsidized write-down in third-party mortgages in exchange for taking on a recourse, no-bankruptcy loan. In scary economic times, many homeowners might be reluctant to take the Feldstein option.

The big concern is that we still may be on the brink of an even larger foreclosure disaster — with wave upon wave of foreclosures feeding back to reduce housing prices, thereby inducing more homeowners to walk away from their mortgages.

To stabilize things, we need to solve what economists call a “participation constraint” problem. We need to either 1) meet homeowners’ participation constraint (offer them a deal that is worth taking), 2) meet mortgage holders’ participation constraint (hard to do because ownership is so fractionated), or 3) take on the hard question of cramming down a legislative solution that roughly makes the different participants better off.

(Hat tip: Roberta Romano)

Posted 8:20 PM by Ian Ayres [link] (8) comments

Eric Posner and I on Bloggingheads

JB

Eric Posner and I discuss the Supreme Court during the Obama Administration, National Security policy after Bush, and the pros and cons of criminal prosecutions versus Truth Commissions.





Posted 6:46 PM by JB [link] (20) comments

The endless mischiefmaking of the dead-duck Bush Administration

Sandy Levinson

Today's New York Times has two stories that underline the price we pay, thanks to our defective Constitution, of maintaining in formal legal power--without any political authority otherwise--one of the most thoroughly repudiated administrations in the history of the American republic. It is not only, as noted in an earlier posting, that the Administration is placing in the permanent civil service a bunch of incompetent and unqualified ideologues and that the economy is in the hands, at least in part, of a high-rolling former Goldman Sachs executive who offers no evidence that he has any genuine idea of what he is doing from day to day. Today we find out that "the United States" (for which read Condoleeza Rice, presumably with the support of her ostensible boss) is pressing NATO to admit Georgia and Ukraine without going through the usual formalities. Elsewhere on the same page of the Times is an interesting story tellingly titled "Ex-Diplomat Says Georgia Started War With Russia," detailing the testimony of Georgia's former ambassador to Russia. According to the story, "A former confidant of President Mikheil Saakashvili, Mr. Kitsmarishvili said Georgian officials told him in April that they planned to start a war in Abkhazia, one of two breakaway regions at issue in the war, and had received a green light from the United States government to do so. He said the Georgian government later decided to start the war in South Ossetia, the other region, and continue into Abkhazia."

One can, of course, wonder about the accuracy of the testimony. My own suspicion is that the "green light" was received not from "the United States government," but, rather, from Sen. John McCain's chief foreign policy adviser, who had formerly been a well-paid lobbyist for Saakashvili. We know that McCain immediately supported Georgia ("We are all Georgians") and the adventurist Georgian president could well have believed that he would be able to help bring to the White House someone who might indeed be willing to beat the drums of war vis-a-vis Russia.

The point, of course, is that almost no serious foreign policy analyst believes that Georgia and the Ukraine should get close to NATO, unless, that is, we want to slip back fully into the late, great days of the Cold War and solemnly assure the world that American troops and bombers will be used should the territorial integrity of either of these nations be threatened. Obama, too, joined in some of the knee-jerk support for Georgia, but one hopes that now that he (almost) actually has responsibility for American foreign policy, he will be considerably cooler.

The more important point is that it is almost lunatic for this outgoing Administration, even if it were not the most thoroughly repudiated Administration at least since 1932 (and Hoover was repudiated only with regard to domestic policy), to make decisions, in the name of "the American people" that no sane person (there I go again) can view as required to be made at this very moment because of the exigencies of current emergencies. If the US were attacked, then George W. Bush, alas, would have to be "the great decider." But we can surely wait until Jan. 20 to find out whether "the United States" really wants to roil the NATO alliance in behalf of the remarkably debatable--I am tempted simply to say "inane and irresponsible"--proposal to expand NATO to include two quite unstable states with at least some adventurist leaders who would love to bait the Russian bear if they thought they could count on American support should the bear retaliate.

Posted 10:28 AM by Sandy Levinson [link] (33) comments

Can Hillary Be Secretary of State? or, Pass the Emoluments, Please

JB

Hillary Clinton was elected to the Senate in 2006. A January 2008 executive order pursuant to a general cost of living adjustment statute increased the Secretary of State's salary (along with many other federal offices). January 2008 falls within the term for which Senator Clinton was elected. Her appointment to Secretary of State would also be during the time for which she was elected. The Secretary of State is a civil office under the Authority of the United States.

The Emoluments Clause (or Ineligibility Clause), Article I, § 6, cl. 2 provides:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time . . . .


Madison's notes on the provision (June 23, 1787) are here. They do little to help Senator Clinton's cause.

If Clinton's term had ended before her appointment as Secretary of State, there would be no problem. If the COLA had occurred during her first term (from 2000 to 2006) there would also be no problem. See the discussion in this OLC memo. Similarly, if Senator Clinton were appointed to a position created after 2012, when her term expires, there would be no problem. See this OLC memo. And finally, there might not be a problem if no particular salary had been assigned to the office. See this OLC memo.

There remains the question of whether Congress could simply reduce the salary of the Secretary of State to pre-2006 levels. This is the so-called "Saxbe Fix."

The Saxbe Fix has been tried before, with some grumbling. The question is whether it should continue as a precedent when it is not consistent with the constitutional text. On this question, see the discussions here, here, and here.

For me the question boils down to whether the text is ambiguous, in which case we could offer a limiting construction consistent with its purposes, or whether it is clear and unequivocal, in which case we cannot. The purpose of the Clause is to prevent legislative corruption and the multiplication of new offices as sinecures or golden parachutes. If the language of the text is ambiguous, the use of the Saxbe Fix wouldn't seem to violate the purposes of the Clause.

But is the text ambiguous? The text says "shall have been encreased during such time [for which the Senator was elected]." The term "shall have been increased" seems to focus on whether any act increased the salary, and thus it would include cases where the salary was increased and then decreased during the Senator's term of office. Of course, this reading doesn't really serve the purposes of the Clause. Could we read the text to mean "shall have had a net increase at the time of appointment?" That would allow the Saxbe Fix.

You might argue that the Ineligibility Clause really is ambiguous because the words "shall have been increased" might only be a fancier, eighteenth century way of way of saying "shall have increased"; the latter expression would be (more) consistent with looking to the net result, rather than to whether any particular act of increasing salaries occurred. But it's worth noting that the people who wrote the text could have used "shall have increased" (it was perfectly good English at the time) and they didn't.

My guess is that the question of whether you think the clause is ambiguous or clear will turn on whether you think it creates a serious problem-- for example, you think it very important that Presidents should be able to nominate the people they think are most qualified to federal offices. That is, the consequences of an interpretation inevitably affect our judgments of clarity and ambiguity. There are limits to this flexibility, of course. I would have real problems finding the requirement of a 35 year old president ambiguous enough to look to an underlying purpose-- say, maturity. I would be hard pressed to find the age requirement sufficiently ambiguous to allow a 30 year old but very emotionally mature President.

For the reasons described above, the Ineligibility Clause seems more ambiguous than the 35 year age requirement. However, I don't think that the clause creates a serious problem, and so, if we were writing on a clean slate, I would hold that the Saxbe Fix doesn't work. But the question turns out to be far more difficult than I had initially thought. So let me conclude this post with what I think is the best argument against my position, and in favor of the constitutionality of the Saxbe Fix.

If you think that the political branches should be given some leeway in close cases, if you also think there is no overriding and very important principle that is threatened, and if you think that past precedents should generally be respected unless there are good reasons to ignore them, you should allow the Saxbe Fix. You might even quote the following language on constitutional construction:

It will not be denied, that a bold and daring usurpation might be resisted, after an acquiescence still longer and more complete than this. But it is conceived, that a doubtful question, one on which human reason may pause, and the human judgment be suspended, in the decision of which the great principles of liberty are not concerned, but the respective powers of those who are equally the representatives of the people, are to be adjusted; if not put at rest by the practice of the government, ought to receive a considerable impression from that practice. An exposition of the constitution, deliberately established by legislative acts, on the faith of which an immense property has been advanced, ought not to be lightly disregarded.

For "an immense property," substitute "the nation's foreign policy."

Posted 7:05 AM by JB [link] (24) comments

A Clinton voter repents

Andrew Koppelman

So I’ll admit it: I voted for Hillary Clinton in the Illinois Democratic primary, and now I’m sorry. I hadn’t anticipated the enormous sense of political liberation and exhilaration that an Obama presidency would create. Clinton wouldn’t and couldn’t have delivered that.

I tend to judge politicians the way I judge other hired help: can they do the work I’m paying them to do? There is, of course, a set of contestable political judgments in my view. I’m paying the government to deliver universal health care, ameliorate the maldistribution of wealth in the United States, provide safe workplaces, stop global warming, and deliver any number of other things that my conservative friends think ought not to be delivered. In the primaries, Obama and Clinton weren’t very far apart on any of those issues, and I never found a reason to care terribly which of them got the nomination. I was troubled by Obama’s lack of experience. Now it seems likely that whatever Clinton’s experience can offer the country will in fact be available to it in a slightly less exalted office.

The promise of Obama is nicely encapsulated in this prescient blog post, written last January for the Huffington Post by the 1960s radical leader Tom Hayden when he endorsed Obama. Hayden concludes:

“I have been devastated by too many tragedies and betrayals over the past 40 years to ever again deposit so much hope in any single individual, no matter how charismatic or brilliant. But today I see across the generational divide the spirit, excitement, energy and creativity of a new generation bidding to displace the old ways. Obama's moment is their moment, and I pray that they succeed without the sufferings and betrayals my generation went through. There really is no comparison between the Obama generation and those who would come to power with Hillary Clinton, and I suspect she knows it. The people she would take into her administration may have been reformers and idealists in their youth, but they seem to seek now a return to their establishment positions of power. They are the sorts of people young Hillary Clinton herself would have scorned at Wellesley. If history is any guide, the new "best and brightest" of the Obama generation will unleash a new cycle of activism, reform and fresh thinking before they follow pragmatism to its dead end.

“Many ordinary Americans will take a transformative step down the long road to the Rainbow Covenant if Obama wins. For at least a brief moment, people around the world -- from the shantytowns to the sweatshops, even to the restless rich of the Sixties generation -- will look up from the treadmills of their shrunken lives to the possibilities of what life still might be. Environmental justice and global economic hope would dawn as possibilities.

“Is Barack the one we have been waiting for? Or is it the other way around? Are we the people we have been waiting for? Barack Obama is giving voice and space to an awakening beyond his wildest expectations, a social force that may lead him far beyond his modest policy agenda. Such movements in the past led the Kennedys and Franklin Roosevelt to achievements they never contemplated. (As Gandhi once said of India's liberation movement, "There go my people. I must follow them, for I am their leader.")”

Hayden’s judgment turns out to have been prescient. Obama will do the country good just by being in the White House.

He looks likely to be pretty good at delivering on those mundane policy details, too.

Posted 4:15 PM by Andrew Koppelman [link] (28) comments

National Coalition to End Judicial Filibusters: What Say You Now?

Brian Tamanaha

Democrats hope to reach the magic number of 60 Senators, which will allow them to shut down filibusters. It looks like they might fall just short. At least with respect to judicial appointments, however, they have nothing to worry about.

On March 12, 2003, Senate Majority Leader Bill Frist read on the floor of the Senate a letter from President Bush calling for a ban on judicial filibusters. This is necessary, Bush insisted, "to ensure timely up or down votes on judicial nominations both now and in the future, no matter who is president or which party controls the Senate."

In 2005, The National Coalition to End Judicial Filibusters sent a series of letters to Republican Senators urging that filibsters be abolished (the "nuclear option"). With indignation, they wrote: "As the representatives of millions of American voices, we write again to urge you to end judicial filibusters. If elections are to mean anything, and they must mean something, you must end the obstruction."

Although the membership of this organization included the Who's Who of conservative activists (C. Boyden Gray, Chuck Colson, Gary Bauer, Grover Norquist, Tony Perkins, Jay Sekulow, and many more, almost 200 conservative luminaries in all), their position was not motivated by partisan politics but by principle. "We believe that generations of Americans are called at moments to lay foundations for the future, and that this is one such moment," they wrote majestically.

The Senate must act as steward of the federal courts by returning the power to confirm judges to the Constitution's simple majority requirement. While it is the right of the President to expect the Senate to give Advice and consent within a reasonable period of time, it is the duty of every Senator to offer Advice and Consent through an honest, up and down vote....We ask you also to put partisan advantage aside. While there is no doubt that the Minority's filibusters have helped Republicans win recent elections, we are certain that Republicans will do the right thing for themselves and the Nation by ending the partisan obstruction now.

Like I said, nothing to worry about. The Republicans will not threaten to filibuster any of President Obama's judicial appointments. Their integrity, their respect for elections, and their commitment to the Nation will not allow it.


Posted 4:07 PM by Brian Tamanaha [link] (11) comments

Tom Friedman finally begins to connect the dots

Sandy Levinson

The November 23 column by Tom Friedman begins as follows:

So, I have a confession and a suggestion. The confession: I go into restaurants these days, look around at the tables often still crowded with young people, and I have this urge to go from table to table and say: “You don’t know me, but I have to tell you that you shouldn’t be here. You should be saving your money. You should be home eating tuna fish. This financial crisis is so far from over. We are just at the end of the beginning. Please, wrap up that steak in a doggy bag and go home.”

Now you know why I don’t get invited out for dinner much these days. If I had my druthers right now we would convene a special session of Congress, amend the Constitution and move up the inauguration from Jan. 20 to Thanksgiving Day. Forget the inaugural balls; we can’t afford them. Forget the grandstands; we don’t need them. Just get me a Supreme Court justice and a Bible, and let’s swear in Barack Obama right now — by choice — with the same haste we did — by necessity — with L.B.J. in the back of Air Force One. [emphasis added]

Unfortunately, it would take too long for a majority of states to ratify such an amendment. [emphasis added.] What we can do now, though, said the Congressional scholar Norman Ornstein, co-author of “The Broken Branch,” is “ask President Bush to appoint Tim Geithner, Barack Obama’s proposed Treasury secretary, immediately.” Make him a Bush appointment and let him take over next week. This is not a knock on Hank Paulson. It’s simply that we can’t afford two months of transition where the markets don’t know who is in charge or where we’re going. At the same time, Congress should remain in permanent session to pass any needed legislation.

Of course, the Congress that would be meeting from now through the beginning of January would be the lame-duck Congress, about which see my earlier posting today. Why in the world does Friedman believe that the obtuse Republicans in the Senate, at least half a dozen so far who are lameducks--and at least three of whom were fired by their constituents--would agree with Democrats on what counts as "needed legislation"? But I don't want to be churlish. Perhaps Friedman will be able to jump-start a serious national conversation, since at last a genuine pundit has finally figured out that our Constitution is a hindrance rather than a help. For what it is worth, incidentally, there's not a single sentence in Ornstein and Mann's otherwise fine book The Broken Branch that addresses any constitutional difficulties with Congress. And Ornstein's suggestion that Paulson be fired and replaced immediately with Tim Geithner requires acquiescence by George W. Bush, who would have to recognize that he is indeed the most abject failure in the history of the American presidency. But if he can come to that recognition, then why stop with Paulson. Why, indeed, shouldn't Friedman join his colleague Gail Collins and demand the resignation of Cheney and Bush, in that order?

Posted 9:48 PM by Sandy Levinson [link] (36) comments

Another institutional crisis in the making?

Sandy Levinson

President-elect Obama should presumably still the complaints of some of his critics who have wanted him to be more active in trying to lead, given his radio address vowing what the New York Times calls "swift action" on a very ambitious stimulus package. But the story concludes as follows:

While Mr. Bush would be out of office, Congressional Republicans could still block a big stimulus package in the Senate, as Mr. Obama seemed to recognize. “I know that passing this plan won’t be easy,” Mr. Obama said. “I will need and seek support from Republicans and Democrats, and I’ll be welcome to ideas and suggestions from both sides of the aisle.”

“But what is not negotiable,” Mr. Obama said, “is the need for immediate action.”

So put this in the context of another story just posted on the Times web site concerning the focus on the senatorial recount in Minnesota and the run-off election in Georgia:

Pushed into a deep 58-42 Senate hole by this week’s defeat of Senator Ted Stevens, Republicans are approaching the remaining two races with a new sense of urgency given that they are on the brink of losing their ability to use Senate procedure to thwart Democrats.... As any C-Span watcher knows, it takes 60 votes to break filibusters in the Senate.

So assume that the House passes an Obama bill by a hefty margin, and it gains the support of 59 senators (including Sen. Arlen Specter, who might well be concerned about keeping his seat in 2010 unless he distances himself from his reactionary colleagues). But, by stipulation, there are 41 Republicans who are willing to filibuster in order "to thwart Democrats." And, let us stipulate, the Obama bill has the support of, say, 62% of the public, which is desperate for a government that appears to be willing and able to respond to the worst economic crisis since the Depression.

The question is simple: Would the American people tolerate the use of the filibuster in such a situation, or would they rightly argue that this additionally anti-democratic feature of our system, which by no conceivable argument is required by the Constitution, should be eliminated?


Posted 3:27 PM by Sandy Levinson [link] (25) comments

Further costs of the "transition"

Sandy Levinson

[This just in from today's Washington Post: "Top Scientist Rails Against Hirings: Bush Appointees Land Career Jobs Without Technical Backgrounds." Read it and weep:

The president of the nation's largest general science organization yesterday sharply criticized recent cases of Bush administration political appointees gaining permanent federal jobs with responsibility for making or administering scientific policies, saying the result would be "to leave wreckage behind."

"It's ludicrous to have people who do not have a scientific background, who are not trained and skilled in the ways of science, make decisions that involve resources, that involve facilities in the scientific infrastructure," said James McCarthy, a Harvard University oceanographer who is president of the Ameican Association for the Advancement of Science. "You'd just like to think people have more respect for the institution of government than to leave wreckage behind with these appointments."

His comments came as several new examples surfaced of political appointees gaining coveted, high-level civil service positions as the administration winds down. The White House has said repeatedly that all gained their new posts in an open, competitive process, but congressional Democrats and others questioned why political appointees had won out over qualified federal career employees.

In one recent example, Todd Harding -- a 30-year-old political appointee at the Energy Department-- applied for and won a post this month at the National Oceanic and Atmospheric Administration. There, he told colleagues in a Nov. 12 e-mail, he will work on "space-based science using satellites for geostationary and meteorological data." Harding earned a bachelor's degree in government from Kentucky's Centre College, where he also chaired the Kentucky Federation of College Republicans.

The "transition" may give President-elect Obama time to make first rate appointments, but it also gives Republican gangsters an extra eleven weeks to do whatever they can, without, of course, a hint of accountability, to wreck the new Administration (can anyone spell "Midnight Judges"?) .


Posted 1:18 PM by Sandy Levinson [link] (18) comments

I read the news today, oh boy....

Sandy Levinson

Before I respond more directly to Jack's post taking issue with my views on the dysfunctionality of our present constitutionally-induced hiatus between election day (which is NOT set out in the Constitution) and the inauguration of the new President (which IS set out in the 20th Amendment), I thought it might be useful to do a quick recap of some of yesterday's and today's news articles and punditry. First, an article in today's NYTimes, "Hints of Relief from the Siege," includes the following paragraph:

The ever-changing direction and momentum of the so-called Troubled Asset Relief Program, or TARP, at the Treasury has baffled many industry executives. In recent days, a growing number of analysts has worried that the interregnum between President Bush and Mr. Obama had created a dangerous vacuum in policy-making.

Next, also in today's Times, Gail Collins begins her column by noting that "Thanksgiving is next week, and President Bush could make it a really special holiday by resigning. Seriously. We have an economy that’s crashing and a vacuum at the top. Bush — who is currently on a trip to Peru to meet with Asian leaders who no longer care what he thinks — hasn’t got the clout, or possibly even the energy, to do anything useful."

Nobel-Prize winner Paul Krugman began yesterday's column in the Times as follows:

There is, however, another and more disturbing parallel between 2008 and 1932 — namely, the emergence of a power vacuum at the height of the crisis. The interregnum of 1932-1933, the long stretch between the election and the actual transfer of power, was disastrous for the U.S. economy, at least in part because the outgoing administration had no credibility, the incoming administration had no authority and the ideological chasm between the two sides was too great to allow concerted action. And the same thing is happening now.

It’s true that the interregnum will be shorter this time: F.D.R. wasn’t inaugurated until March; Barack Obama will move into the White House on Jan. 20. But crises move faster these days.

And Floyd Norris, in a column entitled "Looking to Washington Amid Turmoil, So Far in Vain," writes:

With the stock market plunging and the credit market entering a new freeze, cries are being heard for a new government intervention to prop up major financial institutions before President-elect Barack Obama takes office.

“We can’t get from here to Feb. 1 if the current ‘who’s in charge?’ situation continues,” said Robert Barbera, the chief economist of ITG, an investment firm, arguing that Congress should adopt a stimulus package, including temporary tax cuts, as rapidly as possible. Instead, he said, Washington seems paralyzed. . . .

By resigning from the Senate before the current session began and allowing it to appear that a sense of drift could prevail until he is inaugurated, Mr. Obama may have missed an opportunity to exert leadership.

But why in the world would anyone believe that Mr. Obama might have been able to "exert leadership" by remaining in the Senate for even one more day? Consider the final story from yesterday's Times, about lameduck Congresses, including the current one, aptly titled "Lame Duck Session Winds Up with Little to Show." Key paragraphs include:

Lawmakers may yet be back next month, but for now the meager results show why lame-duck sessions often do not work. And why some historians and scholars of Congress, not to mention some of the most prominent lawmakers over history, think that calling such sessions lame is overly generous.

The result this week was that America’s automakers, already reeling from the hard economic times, got banged over the head with a hard lesson about legislative politics in Washington.

Democrats are relishing their more robust majority next year — and a Democratic president — and so they saw no reason to cave to Republican demands. Republicans, in turn, while chastened by the election results, saw no reason to fast-forward Democratic control of Washington.

Several Republican lawmakers who are either retiring or were defeated said they would not support aid for the auto industry. And their impending departures gave them little or no incentive to compromise, evidence of why postelection sessions are dicey.

I have, of course, been railing against the hiatus between election and inauguration, which Jack (and others) defend by emphasizing the importance of the "transition." But there is no such argument available with regard to waiting until the beginning of January to begin the new session of Congress. The 20th Amendment moved up not only Inauguration Day, but also the time for the new session. In the 21st century, newly elected members of Congeress should take their seats within a week of the election. Yes, I know that would leave poor Alaska and Minnesota without senators until the votes are counted, and Georgia has to have its runoff. But that's no excuse for leaving the rest of the country to be governed (or, more accurately, ungoverned) by irascible lameducks.

So now let me turn to Jack's particular arguments, which are obviously thoughtful and well-expressed, but, I regret to say, not persuasive to me. The first has to do with the importance of the transition to pick effective officials, etc. There is, of course, a lot to that argument. But I think that Jack (and others) underestimate the costs, expressed in the various stories mentioned above, of the roughly 11-week hiatus. Why can't the transitioning be done in, say, four weeks? At the very least, as I've argued incessantly, candidates would be expected to appoint "transition teams" immediately upon their nominations, and the last couple of weeks of the campaign could include candid discussion of who is on short lists, if not the nominees themselves. The only argument against this, frankly, is that a candidate might reasonably want to pick one or two people who supported his/her opponent, as part of the "national unity" project. But I have no doubt that smart and effective politicians could figure out a way to keep some of their options open even as they were far more prepared to begin governing than they are today on election day.

Let me pose the following question to Jack (and others) who defend (more of less) the present hiatus: Were you asked to advise any country in the world drafting a new constitution for the 21st century, would you advise such an hiatus between election and inauguration (assuming, of course, that you advised a presidential system in the first place)?

Jack's second argument involves the possibility of "constitutionally acceptable workarounds." I confess that I don't find them very plausible. After all, as Gail Collins notes, the problem of having a despised and ineffectual president and vice president could be solved literally overnight if both of them simply resigned (or, more precisely, if Cheney resigned to be replaced by Obama, and then Bush resigned). Her suggestion, incidentally, that both of them should resign, to be succeeded by Nancy Pelosi, is ridiculous, for at least two reasons. First of all, whatever Nancy Pelosi's considerable talents are, there is no reason to believe they include knowledge of the kinds of issues that will immediately confront President Obama. Secondly, and maybe just as importantly, to become President for eight weeks, she would have to resign from the House. (Ms. Collins, like all the other pundits, should actually read the Constitution.) Why in the world would she want to do that simply to have the honor of being America's first female President?

I also literally don't understand why Jack thinks that Congress has the unilateral power to "appoint" someone to the President's cabinet (i.e., someone not actually nominated by the President) or make the president-elect "a high White House official" without the inclumbent President's consent. One doesn't have to buy the whole "unitary executive" argument to believe that this would be a fatal incursion on our traditional notion of executive power. We could start arguing, of course, about whether Congress could simply designate someone else (say Gen. Grant) to be "commander-in-chief" of the armed forces instead of the despised incumbent Andrew Johnson. I take it that even the most anti-Bush among us (and I obviously would wish to be a contender for the Grand Prize) would find it problematic if Congress simply stated, presumably by passing a law over the president's veto, that Gen. Petreous would now be commander-in-chief and that no military official should care what the President of the United States thinks.

So let me summarize: It's not that I don't see some advantages in the time taken for the transition. But it's all a question of the costs as well as the benefits. Perhaps the real point of Jack's post is that we have a dinosaur-like national government that is just too big for its (and maybe our) own good. You can't expect a dinosaur (or a battleship) to move with alacrity, whatever the crisis. Instead, you have to pray that the crisis just won't be that serious and that we can get through it without making any painful adjustments in the way we organize our system of governance. I remain far more pessimistic than Jack, and I believe that almost every story in the daily news speaks in favor of such pessimism, alas.

What I most wish is that President Obama will actually find it thinkable to appoint a reasonably high-level commission that might consider relatively non-radical changes to the Constitution that might make it less dysfunctional for our 21st century world. There were, of course, such (private) commissions in the '80s, but they led nowhere because the message of the Bicentennial was, basically, to thank God for giving us a perfect Constitution. We need to have some "audacity of hope" that we can escape the more ridiculous chains imposed on us by our defective Constitution.



Posted 12:25 PM by Sandy Levinson [link] (17) comments

In Defense of Presidential Transitions

JB

Sandy Levinson has frequently criticized the gap between the election and inauguration as a poor example of constitutional design. Recently Paul Krugman decried the fact that Obama can't start working on the economic crisis immediately.

I think the constitutional transition between election and inauguration makes good sense. I also think that if there is a problem with the length of the transition the solution does not require a constitutional amendment; the President and Congress can work around it through ordinary legislation.

In the original 1787 constitution, the President did not take office until the March following the election. In the 20th amendment this was changed to January. Perhaps the original reason for the gap was partly due to the difficulty of travel conditions, but this has little relevance today.

Ironically, a transition period makes more sense today than it did in 1787 because the federal government-- and in particular the Executive Branch-- has gotten much larger. Newly elected presidents must appoint a very large number of people in order to begin the work of governing. The Clinton Administration famously took its time filling key positions, particularly White House staff and advisors, and this probably affected its first term performance. The Obama team has (wisely I think) focused first on filling key White House positions and then moved on to cabinet slots. For all we can tell the Obama transition is quite efficient, but even an efficient process takes lots of time when there are so many positions to fill.

Moreover, in today's world it is necessary to vet each and every candidate much more thoroughly than before. This also takes enormous time and effort. Indeed, one needs to put together a significant apparatus just to stage a Presidential transition. With the size of the executive branch, and the need to vet everyone thoroughly, two and a half months may be cutting it close.

If anything is to blame for this, it is not the hard wired Constitution, but rather (a) the growth of the administrative state (including the growth of the defense and intelligence services) and (b) the increasing power of media to derail candidacies that are insufficiently vetted.

One might object that if transition is so important the President-elect can perform some of the key choices during the campaign. But this is not realistically possible in many cases. First, if the election is at all close, the candidate and his team will have to spend all their time just getting elected. Many if not most Presidential elections are not blowouts. Presidential candidates do spend time on putting together transition teams (Obama more than McCain in the last election, although this is understandable because McCain was behind). However, a transition team is much easier to assemble than an Administration. And vetting White House staff and cabinet level positions while simultaneously conducting a no holds barred presidential campaign is difficult if not impossible.

All this may be true, you may say, but isn't there a deep problem with the new President forbidden from taking action when a potential crisis might occur? Perhaps. But if there is a problem, there is nothing in the Constitution that prevents a new President from taking action.

Political reasons may cause Presidents-elect from publicly inserting themselves into everyday decision making until they officially take office. Herbert Hoover begged Franklin Roosevelt to join him in declaring a bank holiday during Hoover's last days in office. Roosevelt refused, and promptly called one shortly after he was inaugurated. The reasons were not constitutional but political. Roosevelt didn't want to be associated with Hoover and Hoover's policies, especially if the bank holiday failed. And if the bank holiday was a success, Roosevelt wanted all the credit. When there is a change of parties, new Presidents may be particularly interested in freeing themselves from the perceived influence of the previous Administration. Hence, the new President may want to influence matters behind the scenes (and nothing in the Constitution stops him from making such suggestions) but not take public responsibility for actions and decisions made during the current President's watch. Again, the problem is not the Constitution but political considerations.

Finally, if the country thinks it necessary to hand off executive authority to the President-elect during a transition-- for example, because of a crisis-- there are plenty of legislative work arounds. [Through the normal advice and consent process the sitting President and] Congress can appoint the President-elect to the President's Cabinet or make him a high White House official. [this is to clear up a point in the original posting: I'm not advocating anything different from the standard Presidential nomination plus advice and consent by the Senate.] Indeed, the President can appoint him to a White House position that does not even require confirmation. In either case, the President-elect can be clothed with the power of the Executive Branch and, with the cooperation of the existing President, make all important decisions necessary to deal with the crisis. [Finally, the President and Congress can even use the 25th Amendment; the sitting Vice-President resigns, replaced by the President-elect, who then makes key decisions, as our current Vice-President has during the Bush Administration.]

It is true that in these cases the President elect will be working with holdovers from the existing Administration. But if you want him to have a full team, well, that's what a transition period is for.

Posted 7:58 AM by JB [link] (19) comments

Who Won that Masked Election?

Stephen Griffin

NPR and other news sources are reporting a roiling debate in the Democratic party about what the election meant. As I understand it, there are at least two debates, although they intersect. One might be called "person vs. policy." Did voters select Obama primarily for his leadership qualities or for his policies? And if policy, which policies were crucial? Getting us out of a severe recession or longstanding problems like health care? The other debate is about ideology, one we often have after elections. Did voters shift left or does the country remain, as so many seem to think, "center-right?"

In addition, there are arguments about what might be called the preconditions for successfully advancing new domestic policy initiatives. Clinton adviser Elaine Kamarck has been arguing that rebuilding trust in government is one these preconditions. The political science evidence I'm familiar with suggests Kamarck is right. Marc Hetherington's 2005 book, Why Trust Matters: Declining Political Trust and the Demise of American Liberalism is very convincing on this point. You might think of increasing political trust as the way to boost the signal of new policies that require cutting through the interference thrown up by opposing interest groups. And how to increase trust? Here's where the analogy to 1933 is on target -- by restoring basic confidence in the economy and the government's ability to handle the recession. But this also means complex domestic initiatives will have to wait.

As for ideology, there is a strange asymmetry operating somewhere. Apparently, elections aren't about ideology except when Republicans win. The empirical evidence I'm familiar with shows elections can't be ideological in the way the term is normally meant because voters don't think of themselves as "conservative" or "liberal" in the first place. If this is a relatively stable truth, however, then it applied with equal force to the 1980 election, the so-called "Reagan revolution." There was plenty of evidence in the 1980s that despite Reagan's political dominance voters hadn't changed their adherence to policies normally referred to as liberal. Whole books were written about this such as Right Turn, a 1986 effort by Thomas Ferguson and Joel Rogers.

But Republicans didn't see it that way. They set the terms of a debate among elites which they won, claiming the 1980 election had vindicated their principles. They acted as if they had faith, and policies were granted to them. So why don't Democrats today emulate the Republicans of 1980? Instead of negotiating with themselves and debating what the election meant, they should seize the high ground and simply claim their principles have been vindicated. And if Obama is as adept as Reagan in picking the few right principles to turn into policy, it all works. Unfortunately, Democrats tend to define themselves by adherence to pragmatism rather than principle. Pragmatism seems to mean carving the election into thin slices and studying them at a microscopic level to see what policies might be acceptable rather than seizing the opportunity for a chance to lead the U.S. to a new place. It's a difference not only with respect to how the parties define themselves, but also about what political leadership means.

To get to the bottom line: of course the election was not about a dramatic shift in ideology. No evidence supports that this ever happens, at least in the way elites define the term. Effective leaders treat electoral success as an opportunity to advance new principles and ideas that will be confirmed by policy success. That's how a "revolution" can get off the uncertain ground provided by a close scrutiny of public opinion and into the history books as a truly new deal.

Posted 9:59 PM by Stephen Griffin [link] (37) comments

The Invisible Election

Heather K. Gerken

Given that election law is my specialty, regular readers of Balkinization may have been puzzled that I haven't posted much during the last year. The reason is that I have been serving as a member of then-Senator Obama's national election protection team since April of 2007. Because I was doing that work in my "civilian" capacity, I felt that I had a dog in the fight and shouldn't hold myself out as an academic commentator on any issue that might affect the campaign.

It was worth dropping out of the commentary game for this round. I stood twenty feet away when Senator Obama became President-Elect Obama. I watched as he pivoted from politician to president, as the paean to our history that had inspired Obama's supporters in New Hampshire became a sobering reminder of the enormous challenges the nation now faces. "Yes we can" was once a muscular chant invoked at partisan rallies. At Grant Park, it was repeated almost in a whisper by 100,000 people, as if it were part of a call-and-response between the president-elect and the nation, a secular amen.

Now that I'm back, I thought it might be useful to say a word about the invisible election that took place in 2008 -- the nuts-and-bolts of election administration that journalists rarely report and citizens rarely see. Even election experts catch only glimpses of the invisible election. In the immediate wake of the election, experts must rely on reporters, and reporters won’t bother to investigate, let alone report on, problems that don't affect the outcome. It's only when the race is close -- as in Florida 2000 and Ohio 2004 -- that we see what really happened at the polling place. To be sure, when political scientists eventually start to crunch numbers, data can give us some sense of what problems arose. But the data we have are often so sparse and haphazard that they can give us only a partial sense of what occurred.

I am one of the few people to have gotten a pretty good view of the invisible election, and the reality does not match the reports of a smooth, problem-free election that have dominated the national media. As part of Obama's election protection team, I spent 18 hours working in the "boiler room," the spare office where 96 people ran national election day operations. Obama's election protection efforts, organized by Bob Bauer, were more generously funded, more precisely planned, and better organized than any in recent memory. Over the course of the day, thousands of lawyers, field staff, and volunteers reported the problems they were seeing in polling places across the country. A sophisticated computer program allowed the lawyers and staffers in the boiler room to review these reports in real time. In many places, everything ran smoothly, just as the media have reported. There were glitches, to be sure, but there were enough poll workers and election administrators to fix them as they came along.

Other jurisdictions simply fell apart as wave after wave of voters crashed down upon them. Thousands of people had to wait three hours or more to vote. In some places, there weren't enough machines to process all the voters. In others, there were plenty of voting machines, but voting booths stood empty because there weren't enough poll workers to check people in. Machines broke down. Parking lots were full. Polling places were hard to find or had been moved at the last minute. Poll workers didn’t know basic rules about provisional ballots and election protocols. Far too many people showed up at the polls thinking they had registered, only to be told they weren’t on the rolls. A bewildering number of polling places needed pens by mid-day because theirs had run out of ink. Many polling places simply ran out of ballots.

These problems occurred even though more voters than ever before (an estimated third of the electorate) cast their ballots before Election Day. They occurred even though everyone knew that turnout would be extremely high. They occurred even though at least one of the campaigns -- recognizing that victory depended on an election system capable of processing hundreds of thousands of new voters -- had done an extraordinary amount of work in helping election administrators get ready for the turnout tsunami that was approaching.

If you'd like to read about the lessons I draw from the invisible election, please see my post on election reform over at Rick Hasen's Election Law Blog.


Posted 12:18 PM by Heather K. Gerken [link] (12) comments

The Rehnquist Papers

Mary L. Dudziak

The Hoover Institution Library and Archives has released parts of the Papers of Supreme Court Justice William H. Rehnquist. Now open at the archives are Rehnquist's papers from 1947 to 1971 and Supreme Court papers from the 1972 to 1974 terms.

Law review writers will want to be aware of the unusually stringent restrictions on copying at the Hoover Institution archives, since copies of archival materials are usually needed for law review cite checks. Because of that I'm cross-posting a Legal History Blog post on the records release, with information for researchers, below the fold.

Prominent case files released so far include Roe v. Wade (1973), protecting abortion rights; Branzburg v. Hayes, (1972), invalidating the use of the First Amendment as a defense for reporters summoned to testify before a grand jury; and Furman v. Georgia, 408 U.S. 238 (1972), a death penalty case that led to a moratorium on the use of the death penalty. The pre-Court papers include Rehnquist's Stanford Law School notebooks from 1951-1952 and a journal with entries dating from 1947-1948 and 1965.

Rehnquist's personal correspondence will be released by January 5, 2009. The library reports that "additional materials including speeches, writings, book drafts, and other documents will be opened in the spring of 2009." Remaining Supreme Court files "shall remain closed during the lifetime of any member of the Supreme Court who served with William H. Rehnquist."

The 37-page finding aid is available on-line. The announcement is here. A New York Times article describes the collection, finding the case materials to "contain mostly un-illuminating draft opinions and perfunctory communications between the justices," with occasional files, including Laird v. Tatum, containing more interesting material. This is consistent with other collections, such as Thurgood Marshall's papers. According to the New York Times, the Roe v. Wade file contains "newspaper and magazine clippings, some of them critical, as well as disturbing color photographs of aborted fetuses."

NOTE TO RESEARCHERS: I have done research at the Hoover Institution archives. The archives staff is very professional and helpful, and you are likely to find a level of professionalism that parallels the Library of Congress manuscript reading room and the presidential libraries. Most of the Hoover Institution's rules for researchers are the ones you encounter in most archives. The one significant difference, which will pose difficulties for many researchers, is the unusually stringent limits on the number of copies you can make: 100 photocopies in a year. Special permission is required for the use of scanners or cameras, and only a maximum of ten images may be taken. It is possible to get permission to make more copies -- but not a lot more. Researchers with limited time to spend at the library, and used to short trips during which relevant documents are copied, are going to have trouble.

There is a reason for this limitation. I was told that the library has had difficulties with a researcher publishing archival materials without permission. Legitimate concerns about protecting unpublished manuscripts in other collections are, unfortunately, applied to routine archival sources that can be photocopied at other archives.

The limitation on photocopying is particularly problematic for writers of law review articles, since law reviews usually require that you supply them with copies of archival documents cited. And any researcher with limited time to spend at the library is going to have trouble. This means that once more papers are released, the most extensive research in these papers is likely to be done by Stanford-area researchers, and by researchers with the budget and lack of family, teaching, and other responsibilities to enable them to spend long stretches in Palo Alto transcribing archival materials by hand.

This collection is likely to be widely used. Let's hope the Hoover Institution will reconsider such a stringent across-the-board photocopying policy. Absent that, full use of the records will be stymied, and the library's small reading room will be cramped with researchers who happen to have the time to type up copies of documents.
Posted 8:57 AM by Mary L. Dudziak [link] (7) comments

The Pro-Life Movement After The Election-- And The Beginnings of Compromise

JB

The Washington Post reports on emerging ideas in the pro-life movement about how to reduce abortions without criminalizing them. Essentially, it involves increased support for social programs that will help poor women and families, under the reasoning that poor women without means are more likely to abort than women who are financially secure.

Since Obama's election means that Roe v. Wade will not likely be overturned in the near future, and since even if it were overturned many states would continue to protect abortion rights, some members of the pro-life movement have argued that the movement should focus on reducing abortion through support for pregnant women and social programs, i.e., through carrots, not sticks.

Perhaps not surprisingly, the pro-life movement is deeply divided over the strategy:

Cardinal Francis George of Chicago, president of the U.S. Conference of Catholic Bishops, said last week during a meeting of the conference that social-service spending is no substitute for legal protections for the unborn. He also questioned research showing that improvements in areas such as employment and health care can reduce the likelihood that a woman will want to end her pregnancy. "It's still to be proven what the connection is between poverty and abortion," he said.

Undeterred by critics, the activists are pushing for the passage of legislation that would increase funding for social services for pregnant women, such as low-cost health care and day care; provide grants at colleges for pregnant women and new mothers' education; and set up maternity group homes. Two House bills with backing from various groups are the Pregnant Women's Support Act, sponsored by Rep. Lincoln Davis (D-Tenn.), and the Reducing the Need for Abortion and Supporting Parents Act, sponsored by Reps. Rosa DeLauro (D-Conn.) and Tim Ryan (D-Ohio), who oppose abortion.

Those bills are largely opposed by antiabortion groups. "You don't work to limit the murder of innocent victims," said Judie Brown, president of the American Life League. "You work to stop it."

To preserve the coalition, activists have avoided taking positions on the more sensitive aspects of the issue, such as laws that restrict abortions, contraception, sex education and abstinence-only programs.

"There are certain things that we probably all can support, and then there are other things that we're going to disagree about, and you find common ground on what you can, and then you have a political battle on your other issues," said Jim Wallis, president of Sojourners.

Three things are worth noting here. First, opposition to abortion in the United States has never been purely about protection of unborn life at all costs. Rather, it has usually also been about support for traditional visions of motherhood, family formation and gender roles. That is why, for example, pro-life advocates rarely wish to punish women for abortions (as opposed to doctors), even though these women are hiring strangers to kill their children. It also explains why some pro-life advocates support exceptions for rape and incest, in which the fetuses involved are just as innocent. A focus on supporting women who choose the traditional path of motherhood-- as opposed to outright criminalization-- does not only seek to save lives, it also resonates with these elements of the pro-life movement.

Second, if you wanted to imagine how the U.S. would come to a durable compromise over abortion, it would probably look something like this new approach: Pro-life advocates continue to believe that abortion is immoral but agree that the criminal law is not the best way to solve the problem of protecting unborn life. Pro-choice advocates in turn agree to new social services and support for poor women that make it easier for them to choose to have children. (This is something that many pro-choice advocates will agree to because many of them also support expanded social welfare programs.) The result is a coalition of social justice pro-life advocates with traditional pro-choice liberals.

In understanding how this compromise would occur, you might make an (imperfect) comparison to changing views on contraception, premarital sex, and homosexuality. Many people believe (or believed) that each of these was deeply immoral, but increasingly came to accept that the criminal law was not the best solution to solve a moral problem. Abortion is different and will remain different because of concerns about unborn life, but if a compromise is to be found, it will likely be in this general direction.

Third, there will continue to be real problems with making any such compromise work. Pro-life advocates will still push for restrictions on abortion short of outright criminalization, restrictions which will often impact most heavily those poor women that the compromise seeks to protect. In addition, many pro-life advocates will resist changing their views on government programs providing increased access to contraception and sex education (other than abstinence programs), even though these reforms might significantly reduce the number of unwanted pregnancies and hence the number of abortion. I think that pro-life advocates will have to give some ground on contraception and sex education if a durable compromise is to occur. At the same time, pro-choice advocates will have to give ground on some kinds of abortion restrictions. Such a compromise is somewhat closer to the compromise over abortion regulation that developed in European countries with well developed social welfare states.


Posted 8:50 AM by JB [link] (153) comments

A Commitment Device for Energy Conservation

Ian Ayres

Crosspost from Freakonomics:

There’s lots of evidence that commitment contracts can help people change behavior with regard to all kinds of things (like savings and smoking cessation). But since participation is voluntary, a huge question is whether you can get people to sign up. This is more than an academic question for me, since the answer will help determine the success of stickK.com, a commitment store that I co-founded earlier this year.

One theory is that the demand will be limited to people who have a willpower problem and are self-aware enough to know they have a willpower problem.

In a post on voting commitments, I argued that even people without willpower problems might enter into commitment contracts as a way to credibly signal their commitment to others.

I just published an article in Forbes with Barry Nalebuff that extends this signaling idea to conservation commitments:

The Chicago Climate Exchange is an unusual free market experiment in which companies that want to demonstrate a true commitment to reducing their greenhouse emissions pledge to lower them by 1 percent a year. If they surpass that goal, they end up with permits they can sell to others. If they fail, they are penalized by having to buy permits.

What is unusual is that no one forces anyone to join the exchange. Participation is voluntary. But once a business has signed up, it is contractually obligated to buy or sell permits based on its performance. A company that beats the 1 percent goal gets both good publicity and a financial reward, and the specter of the potential penalty helps it reach that goal.

Why not offer the same opportunity to individuals? You could contract to reduce your home energy consumption by 1 percent a year for each of the next ten years. When you beat that target, you’d get permits to sell. When you miss, you’d pay a penalty by buying unused permits from others. As a result, your incremental price of fuel would go up. Every extra Btu you use would mean fewer permits to sell or more to buy.

People might volunteer for effective tax increases because they want to signal to their neighbors that they’re really green. They might also want to change their incentives and strengthen their willpower to conserve.

But others might do it for the most traditional economic rationale of all — to make money by selling excess credits to those who fail to meet their goal.

Posted 1:41 PM by Ian Ayres [link] (6) comments

Small steps toward rural land reform

Lauren Hilgers

On a rainy day in Guizhou Province last month, I followed a group of local officials off a rural road into what looked like a carefully tended field of mud. Holding a bullhorn and with an umbrella-toting aid running after him, one official pointed to a twig poking out of the ground and started extolling the many virtues of blueberries. The berry-producing future of that field was hard to imagine at the time, but the official promised the twig heralded coming prosperity in the new socialist countryside.

To explain his optimism, the blueberry farm is the creation of two Japanese companies who are leasing the land from local residents. The companies pay local farmers monthly rent and have promised a share of the profits when the plants start producing. The blueberries are a sign of the times.

This is an arrangement that China’s government has recently put its weight behind with a series of reforms that encourage the leasing of rural land-use rights and the development of larger agricultural blocks. This will increase efficiency in food production, government officials have pledged, and give individual farmers more freedom.

This is not to say that rural land can be privately owned, and experts have pointed out that the transfer of land-use rights is actually nothing new. According to Yu Jianrong, the director of the Rural Development Institute’s Social Issues Research Center at the China Academy of Social Sciences, the reforms are largely symbolic, affirming that farmers can legally transfer the rights to their land. (An English translation of a recent interview is here, thanks to Danwei.)


These rights are currently allocated to farmers through 30-year leases. Ownership of the land is still considered collective and it remains unclear who, ultimately, is responsible for managing the collective land. In the past, this has helped to pave the way for land grabs by local officials—a popular source of unrest in China’s rural areas. While they take many forms, land grabs often involve local officials seizing and reselling land, giving little or no compensation to individual farmers. In a recent case of unrest, railroad workers clashed with farmers protesting the low compensation they had received to make way for a new rail line. Railroad officials complained that they need the cheap land to continue laying new tracks.

Rural reform is further complicated by China’s determination to remain self-sufficient when it comes to food production. Farmers cannot legally use their land for other uses than agriculture, a policy that has caused trouble in areas located just outside of large cities—there is more money in illegally selling property to developers than in maintaining a subsistence farm. The willingness of local officials to implement reform measures is also impacted by a government quota system for grain. Officials in fertile areas are likely more open to experimenting with reform. Provinces with difficulties producing enough rice and wheat are more likely to reserve land for grain production.

Efforts have been made in the past to cement the rights of individual farmers, but to limited effect. China’s 1998 Land Management Law called for contracts providing 30-year land leases to individual farmers that would limit the ability of local government to readjust the land use. A year later, however, studies found that less than half of China’s farmers had been issued contracts, and that many of those contracts did not protect against the readjustment of land use.

As part of the coming reforms, a market will be set up for the trading and transferring of land-use rights. All land-use transfers are required to be voluntary and exchanged at reasonable prices. These measures, however, may not be able to guard against the kinds of abuses of power that have happened in the past. Court systems in rural areas are generally weak and leases secured on a handshake.

It may be the case that as foreign investment and money move into the countryside, the court system will improve. But until those improvements are made and until reforms address the issue of government land requisitions, China’s troublesome land grabs will continue.



Posted 10:12 PM by Lauren Hilgers [link] (4) comments

An "awkward" summit (thanks to our Constitution)

Sandy Levinson

An article in today's NYTimes noted the "awkward[ness]" of the fact that there will be a purported "summit" meeting next week that will not be attended by President-elect Obama. The Times quoted Robert Gibbs, described as a "senior adviser to Mr. Obama": “While some may say it’s awkward that he’s not there, it would be far more problematic to be there. We firmly believe there is only one president at a time.”

Well, yes, and who, precisely, would that be? The legal president or the politically legitimate one? Presumably the answer is the former, even though almost literally no one in the world is particularly interested in talking with him right now (save perhaps for encouraging him against any last minute unilateral military adventurism). But hey, it's all right. We really need the 13 weeks between election and Inauguration for the "transition." I certainly hope that nothing important happens before January 20 that needs decisionmaking by a politically legitimate president. Perhaps I'll just go out shopping at one of the bankrupt businesses having a going out of business sale. That'll get my mind off our defective Constitution....



Posted 9:57 AM by Sandy Levinson [link] (88) comments

The most powerful president in history-- and that's the problem

JB

My op-ed on Presidential power in the Obama administration appears in today's Guardian online.


Posted 7:52 AM by JB [link] (87) comments

Why exactly is the Senate permitted to expel a felon?

Sandy Levinson

Sen. Majority Leader Harry Reid is apparently confident that Sen. Ted Stevens (R-Alaska) is not long for the Senate:

On CNN today, Senate Majority Leader Harry Reid . . . declared that Mr. Stevens will not, will not be in the Senate, come the next session. Asked about Senator Daniel Inouye’s declaration that Mr. Stevens of course could return, Mr. Reid said:

All the Republicans — John Ensign, head of the Republican Senatorial Campaign Committee, Republican Leader McConnell and a long list of people — said that he’s going to be kicked out of the Senate. Of course he is. He is not going to survive.

I find it altogether unclear why Sen. Reid believes so confidently that the Senate will be permitted, as a constitutional matter to kick Sen. Stevens out of the Senate. Let's begin with this question: Could a state require that a candidate for the Senate not be a convicted felon? One might believe that the answer would be "of course," but I take it that the meaning of the Term Limits v. Thornton, 514 U.S. 779 (1995), is that states cannot add to the bare qualifications set out by the Constitution itself, which are limited to "hav[ing] attained to the Age of thirty Years, and been nine Years a Ciizen of the United States, and who shall..., when elected, be an Inhabitant of the State in which he shall be chosen." So, if a "textual" reading of this clause prohibits Arkansas from adding to the list of qualifications "shall not have already served X terms in the Senate"--for what it is worth, I agreed with the dissenters, Thomas, Scalia, Rehnquist, and O'Connor--then I fail to see how it could add a requirement "shall not have been convicted of a felony." If anyone believes that I am wrong on the meaning of Thornton, I await correction with interest.

But, of course, Article I, Section 5 states that "Each House shall be the Judge of the . . . Qualifications of its own Members...." and a certain kind of mindless textualism could read this as supporting the proposition that Congress has complete and utter discretion. But that can't be right, even if, for sake of argument, we can stipulate that congressional decisions would be non-justiciable. If a "sovereign" (or "semi-sovereign" or whatever you want to call it) state can't add to the list of qualifications, why in the world can Congress? The most reasonable reading of the clause is that the Senate can determine whether a proposed member is 30, a citizen for nine years (which kept Albert Gallatin out of the Senate and, some argued in 1870, should have disqualified Hiram Revels, the African-American senator from Mississippi), and an inhabitant of the state the senator purports to represent (which, arguably, couldl support denying Elizabeth Dole her seat had the votes of North Carolina chosen to re-elect her). If one believes that the Senate does indeed have plenary power,

then, I presume, it would be perfectly legitimate, as a constitutional matter, to refuse to a newly-elected senator on racial or religious grounds, which, I presume, just can't be right, even if no court would intervene (and are we really confident that courts would choose to impotent in the case of such an outrage?). But every senator takes an oath to abide by the Constitution and such an exclusion would count, for any reasonable person, as a betrayal of that oath. But one might say that this is only because of the egregious substantive grounds, i.e., racial or religious prejudice. Other, "reasonable," grounds (such as the desire not to associate with felons) would be acceptable. But I suggest that Thornton rejects any such argument. It is eminently "reasonable" to adopt term limits, even if, as a matter of policy, I think they are bad ideas. But the majority in Thornton said that reasonableness is simply irrelevant (any more than, say, Sandra Day O'Connor would allow "reasonable" conscription of state officials for the administration of federal programs or Hugo Black would allow "reasonable" regulation of free speech.... you get the point).

If the people of Alaska want to be represented by a felon, then why not? To be sure, if he is sentenced to jail, there might be some additional problems, but then the good folks of Alaska might have considered that when casting their vote for Sen. Stevens. It is not unknown for states to be effectively "unrepresented" by their senators. After all, South Dakota was without the services of Sen. Tim Johnson while he was recovering from his stroke (and they just re-elected him by something like a 2/3 vote). To the extent that the role of a contemporary senator, alas, is constituent services, then the office could be organized to provide them even if the senator himself is in jail. Or, perhaps, the jail term could be served at night and during Senate recesses, which would be a reasonable way of handling Sen. Stevens's punishment.

My point is fully serious. Should Senator Stevens wish to fight his expulsion, I personally believe he has a very strong constitutional argument that I'm fully prepared to make on his behalf. If I am wrong, it is because a) you agree that Thornton was wrongly decided and, therefore, need not really be followed by a constitutionally conscientious senator; or b) you believe, for reasons that must be explained, that Congress has greater attributes of sovereignty than does Arkansas (in imposing term limits) or Alaska (in deciding that it wishes to be represented by a felon). I suppose that someone might simply cite earlier Senate precedents. But all of them preceded Thornton.

Posted 3:59 PM by Sandy Levinson [link] (55) comments

The worst reason in the world to deny Joe Lieberman the Chair of the Homeland Security Committee

Sandy Levinson

A story in Friday's NYTimes concerned the Democrats' response to the egregious Sen. Joseph Lieberman. I have disliked Lieberman since he casually joined in giving away Florida in 2000 (by refusing to countenance a challenge to amost undoubtedly illegal military absentee ballots), but that's really beside the point. I note the following part of the Times article:

Many Democrats say Mr. Lieberman had crossed a line not only by endorsing Mr. McCain, his longtime friend, but also serving as one of his closest advisers and by sharply questioning Mr. Obama’s qualifications to be president. Some Senate Democrats and aides say it is unthinkable to let Mr. Lieberman head a committee that will conduct oversight of the Obama administration.

It is a paradoxical truth that the very best reason to keep Sen. Lieberman in his position is precisely that he will be engaged in overseeing the Obama administration. As Rick Pildes and Daryl (no relation) Levinson wrote in a splendid Harvard Law Review article a couple of years ago, the single best explanation for the utter failure of Congress to engage in oversight of the Executive branch during periods of "united government" (as we will have beginning January 20, 2009) is party loyalty. This is why James Madison's optimism in the 51st Federalist about "checks and balances" has proved to be wrong. Congressional Republicans put their party loyalties above all else (until the past election season, when it suddenly became opportune for many of them to deny they ever heard of George W. Bush).

It would be terrible, frankly, if Democratic legislators prove to be as negligent as their Republican counterparts when they enjoyed a unifed government. Pldes and Levinson note that German practice is to put a member of the opposition in charge of at least one of the major committees of the Bundestag dealing with foreign or defense affairs. This is a fine idea. Needless to say, I anticipate that the Obama Administration will be the first in recorded history to do everything just right and, therefore need no whit of oversight. But, just in case I turn out to be wrong in my optimism, it would be good to know that Congress in fact was living up to its constitutional duty to ask hard questions and not simply playing dead before Administration assurances about the purity of its motives and quality of its policies.

I can understand the impulse to punish Sen. Lieberman. As Gail Collins suggested in an hilarious column this (Saturday) morning, if Lieberman, like Lindsay Graham, had promised to drown himself if Obama took North Carolina (or even get more than 60% of the vote in Connecticut), one might be tempted to hold Lieberman to the promise. But to want to deprive him of chairing the Homeland Security Committee because, God forbid, he might want to engage in vigorous oversight of the new administration is truly awful reasoning. It would truly be "putting country first" to keep Lieberman where he is (or, if one must exact some punishment for his betrayals, finding a Republican to replace him, perhaps Sen. Collins or, for that matter, John McCain, who I suspect will revert, after his disgraceful campaign that left so many people wondering why they ever admired him in the first place, to his earlier, and far better, self).

Posted 10:49 PM by Sandy Levinson [link] (31) comments

Same-sex Marriage: The Good News from the 2008 Election

Andrew Koppelman

Election Day 2008 looked like a big setback for same-sex marriage in the United States. California’s Proposition 8, declaring that “Only marriage between a man and a woman is valid or recognized in California,” was approved by 52% of the voters, abolishing same-sex marriage in that state. But there’s good news in the election results, even in the results from California.

Begin with two other results from Tuesday’s election. In New York, Republicans lost control of the state Senate, leaving all the branches of the state government in the hands of Democrats. Governor David Paterson is pushing a same-sex marriage bill, and has ordered state agencies to recognize same-sex marriages from other states. Same-sex marriage won’t be the first issue taken up by the New York legislature, but it’s on the agenda in a way that it was not before. And, as you probably noticed, the presidency was won by Barack Obama, who has pledged to extend federal benefits to same-sex couples.

There are now 30 states whose state constitutions ban same-sex marriage. (Arizona and Florida also adopted such provisions last week.) But there are still two states, Massachusetts and Connecticut, that have same-sex marriage. A proposal to call a convention to amend Connecticut’s constitution, which might have abolished such marriages there, was defeated. There are also five states that give same-sex couples all the rights of married couples: New Hampshire, New Jersey, Oregon, Vermont – and California, whose domestic partnership law was left undisturbed by Proposition 8. That’s a big chunk of the country, comprising a fifth of the population; it will become a quarter of the population if New York joins them.*

The long-term trend favors same-sex marriage. Public opinion increasingly regards homosexuality as an acceptable lifestyle and supports some recognition for gay relationships. Proposition 8 passed with 52% of the vote. A similar provision eight years ago got 60%.

It is revealing that Amendment 8, which was drafted by the religious right, leaves California’s domestic partnership law untouched. I’ve had candid conversations with religious right activists about domestic partnership laws. They loathe and fear those laws, which give same-sex couples a recognized status in society (even if it is a second-class status). They think that, if domestic partnership laws are in place for a few years, gay activists will return to the legislature and ask, why don’t you just call our relationships marriages? And by then no one will remember any more why it was important not to.

It must have been terribly painful for them to write such a relatively modest provision. I’m sure there were internal arguments about it. In other states, they have produced astonishingly broad bans on any recognition of same-sex relationships. Texas now has a provision in its constitution declaring that the state and its subdivisions “may not create or recognize any legal status identical or similar to marriage.” This is so clumsily drafted that, taken literally, it abolishes all marriages in Texas. (I discuss other, similarly broad state provisions here.)

Why did they restrain themselves in this way? The answer is obvious: they didn’t think that a broader provision could pass. Even the religious right, then, recognizes the direction that the country is moving. Proposition 8 is a nasty setback, but it doesn’t change the long-term trend. Same-sex marriage is the future.



* Based on U.S. Census population figures for 2007: U.S., 301,621,157; California, 36,553,215; Massachusetts, 6,449,755; Connecticut, 3,502,309; New Hampshire, 1,315,828; New Jersey, 8,685,920; Oregon, 3,747,455; Vermont, 621,254. The five states combined add up to 60,875,736, or 20% of the U.S. New York has a population of 19,297,729. All figures are taken from http://factfinder.census.gov.

Posted 7:30 PM by Andrew Koppelman [link] (214) comments