Balkinization: Better a criminal than an overreaching incompetent?

Better a criminal than an overreaching incompetent?

Sandy Levinson

I begin by commending Laurence Tribe's typically incisive and bravura statement regarding the issues surrounding signing statements. I think he is exactly right in almost all respects. What strikes me about the debate, though, is precisely its "legalistic" nature. That is, opponents of President Bush seem to believe that they must, in effect, proclaim that he is acting unconstitutionally rather than, say, "merely" unwisely or even frighteningly, in his articulation of his powers under Article II. Concomitantly, supporters seem to believe they win the debate if they can demonstrate that Bush is in fact following a fairly well-established legal practice, going back at least to President Woodrow Wilson, of issuing such "signing statements." In some ways, I think this manifests part of the pathology that came to the fore at the time of Watergate and has been with us thereafter. To wit, we seem to believe that a president remains entitled to his office (and the public trust) so long as he/she isn't a "criminal," which for these purposes can be defined as someone who violates reasonbly clear constitutional duties. Unfortunately, this pathology derives from the Constitution itself.

I have in earlier posts noted some of the peculiar (and distorting) features of the debate over President Clinton's impeachment in this regard. We would, I believe, far better off if our Constitution allowed votes of "no confidence" in presidents whom we regard as overreaching incompetents, without having to demonstrate criminality. Unfortunately, to suggest such a possibility in the minds of most is to be just as defiant of constitutional norms as Bush's "signing statements" are thought to be. Almost everyone seems to agree that George Bush is precisely like a feudal lord (or pre-revolutionary official in France), who "owns" his office until Jan. 20, 2009, unless he commits an act of obvious "high" criminality or becomes sufficiently ill as to warrant replacement via the 25th Amendment (though the Amendment proved unavailing with regard to what was quite likely Ronald Reagan's known (to insiders) Alzheimer's disease in his second term). This is one of the realities behind Joseph Lieberman's ineptly-phrased statement that we had to be concerned about undercutting the president we were stuck with for three more years. Even Lieberman's bitterest enemies do not suggest that there is a way, under our current system, of bouncing Bush prior to 2009,other than the formalities of impeachment and proof of "high crimes and misdeameanors."

Thanks to our thoroughly defective Constitution, we are unable to have the kind of cogent discussion of George Bush's retention in office that would be best for the nation. If we had a procedure of "no confidence," the 2006 congressional elections could easily be run precisely on whether or not the public wanted to maintain him in office. Obviously, if the alternative were Dick Cheney, many people might answer "yes." This illustrates another constitutional pathology, the presence of a vice-president as heir-apprent who may in fact be every bit as bad as the incumbent. This was, incidentally, not the case with Clinton and Gore. Those who (defensibly) viewed Clinton as disgracing his office could have no legitimate objection to Gore's becoming President in his stead. Any process of no-confidence displacement would have to address this problem. My own solution, for what it is worth, is to allow the Congress either to call new elections or to allow the congressional caucus of the president's own party to pick his/her successor, in order to guard against an opposition-party motivated "coup" to seize the White House without having won an election.

It should be clear that the "signing statement" controversy raises fundamental questions about the nature of our political system. Some of these questions can be addressed through the skills of first-rate lawyers like Professor Tribe. But others, I fear, tend to fall through the cracks precisely because our Constitution seems to confine us to "legalistic" thrusts and counterthrusts and to delegitimize in advance a dialogue based on more "political" considerations. However important the former are, ultimately the latter are, I believe, even more important. In reviewing the late Abram Chayes's book on the Cuban Missile Crisis many years ago, I suggested that he was displaying a kind of "crackpot legalism" in his emphasis on the legality of Kennedy's blockade of Cuba while totally and completely ignoring the fact that Kennedy, according to Ted Sorenson, believed that he was running a 1/3 chance of nuclear war by challenging the Soviet Union. I imagined someone in a cave, following a nuclear exchange, proclaiming, "I'm so glad that JFK had a legal basis for doing his part to initiate World War III." (Thank God Kennedy was ultimately willing to compromise with Khrushchev by in effect offering to withdraw Jupiter missiles from Turkey, though, because of the upcoming elections, he lied to the American public with regard to whether any deal had been struck.) We have to develop a way of talking truly seriously about the central issues of our time, including the nature of our political system, without believing that it all reduces to standard-form "legal arguments."

Posted 11:14 PM by Sandy Levinson [link]

Comments:

I understand the critique that too often political questions morph into legal ones, but really, the signing statement issue follows a different model. That's the model where everyone knows what the Constitution actually provides, but you have some lawyers who are able to come up with some creative arguments why we shouldn't follow it. Sometimes these sorts of arguments succeed-- see, e.g., Wickard v. Filburn (holding that an activity that occurred on a person's own farm was plainly not "commerce among the states" could nonetheless be intrusively regulated by the federal government)-- so we shouldn't be too scornful of them. But that's what's going on here.

It's perfectly clear that the President's authority to check unconstitutional legislation is contained in the Presentment Clause of the Constitution, which allows him to veto legislation. (He can also appoint private counsel for the government and have the executive branch argue that a statute is unconstitutional in court. And with criminal statutes, he may use discretion not to prosecute. The President can also resign his office if he truly feels he cannot enforce the law.)

It's also perfectly clear that line-item vetoes are unconstitutional under controlling authority-- controlling authority that I might add emphatically and persuasively rejected the position of the former Clinton OLC folks now arguing for signing statements, and exposed that reasoning as completely and utterly without merit.

The presence of the all-or-nothing Presentment Clause, and the unconstitutionality of line-item vetoes, makes it clear that the President is supposed to veto unconstitutional (including unconstitutional-as-applied) legislation. It's purely because Presidents don't want to take the political hit of vetoing legislation that they instruct OLC lawyers to draft convoluted defenses of signing statement line-item vetoes.

It's just a make-weight argument, concocted by lawyers who don't like the fact that the Constitution sometimes forces Presidents to do things they would rather not do. It's designed to provide a talking point for those who trumpet executive power, nothing more.

# posted by

Dilan : 3:39 AM

The problem with your position is that it's more or less a given in a democracy that the side that lost the election is going to think that the winning side's people are instituting bad policy. It's only when the people who elected you start thinking that your policies are bad, that it has any implications for the legitimacy of your continuing in office.

I tend to think that the debate is not "distorted" by the fact that we're not a parlementary system. Unless you take that system as the default, somehow. We're having the appropriate debate for OUR system.

# posted by

Brett : 7:30 AM

Re Dilan's comment: The difference between the two of us is that I find the Constitution considerably less "clear" than Dilan does on the issues under discussion. At the very least, one is unlikely to convince people on the other side (whatever the issue) by proclaiming that the Constitution "clearly" rejects their position, whether the topic is signing statements, affirmative action, or, indeed, the extent of Congress's power under the Commerce Clause.

The question for those who take Dilan's position is as follows: Would you support amending the Oath of Office Clause to (something like) the following: "I will support, protect, and defend the Constitution of the United States, but only as it is defined by the Supreme Court of the United States"?

As for Brett's response, I should make it clear that I do not support "pure parliamentarianism." Indeed, I tried to make it clear that my preferred "no-confidence" system would make it impossible for an opposition party to take power through the no-confidence vote. Moreover, I should have specified as well that any vote of "no confidence" would have to be supermajoritarian, which would, as a practical matter, requires that there be some degree of support from the President's own party for the no-confidence measure.

I agree with Brett that the debate we're having is, alas, structured by aspects of our Constitution (i.e., the impeachment clause's emphasis on "high crimes and misdemeanors"), but that is independent of the fact that we are a presidentialist system per se.

# posted by

Sandy Levinson : 9:15 AM

I tried to make it clear that my preferred "no-confidence" system would make it impossible for an opposition party to take power through the no-confidence vote. Moreover, I should have specified as well that any vote of "no confidence" would have to be supermajoritarian, which would, as a practical matter, requires that there be some degree of support from the President's own party for the no-confidence measure.

Wouldn't the same result be achieved by expanding the scope of impeachable offenses?

Ultimately, though, I'm afraid that your proposal is itself too legalistic. Whatever the Constitutional provision, whatever the established practice, I can't imagine the Congress we've had for the last 4 years taking any action against Bush -- the real scandal has been the abdication of Congressional responsibility, not the lack of Congressional power.

I'm less inclined to see the current problem as a structural failure and more inclined to see it as a political one.

# posted by

Mark Field : 12:18 PM

"What strikes me about the debate, though, is precisely its 'legalistic' nature. That is, opponents of President Bush seem to believe that they must, in effect, proclaim that he is acting unconstitutionally rather than, say, 'merely' unwisely or even frighteningly, in his articulation of his powers under Article II. Concomitantly, supporters seem to believe they win the debate if they can demonstrate that Bush is in fact following a fairly well-established legal practice, going back at least to President Woodrow Wilson, of issuing such 'signing statements.' "

Well I have to agree with Prof. Tribe's basic observation that the signing statements per se are not the real problem, and I don't think there's anything 'legalistic' about the current situation except the outrageously dishonest sophistry of the administration's supporters.
What is political about establishing the elements of a crime under a statute?

All of their policies derive from a single consitututional claim:

""In light of the text, plan, and history of the Constitution, its interpretation by both past Administrations and the courts, the longstanding practice of the executive branch, and the express affirmation of the President's constitutional authorities by Congress, we think it beyond question that the President has the plenary constitutional power to take such military actions as he deems necessary and appropriate to respond to the terrorist attacks upon the United States on September 11, 2001. Force can be used both to retaliate for those attacks, and to prevent and deter future assaults on the Nation. Military actions need not be limited to those individuals, groups, or states that participated in the attacks on the World Trade Center and the Pentagon: the Constitution vests the President with the power to strike terrorist groups or organizations that cannot be demonstrably linked to the September 11 incidents, but that, nonetheless, pose a similar threat to the security of the United States and the lives of its people, whether at home or overseas. FN32 In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make."

{ FN32 - We of course understand that terrorist organizations and their state sponsors operate by secrecy and concealment, and that it is correspondingly difficult to establish, by the standards of criminal law or even lower legal standards, that particular individuals or groups have been or may be implicated in attacks on the United States. Moreover, even when evidence sufficient to establish involvement is available to the President, it may be impossible for him to disclose that evidence without compromising classified methods and sources, and so damaging the security of the United States. See, e.g., Chicago & Southern Air Lines, Inc, 333 U.S. at 111 ("The President... has available intelligence services whose reports are not and ought not to be published to the world."); see also Ruth Wedgwood, Responding to Terrorism: The Strikes Against Bin Laden, 24 Yale J. Int'l L. 559, 568-74 (1999) (analyzing difficulties of establishing and publicizing evidence of causation of terrorist incidents). But we do not think that the difficulty or impossibility of establishing proof to a criminal law standard (or of making evidence public) bars the President from taking such military measures as, in his best judgment, he thinks necessary or appropriate to defend the United States from terrorist attacks. In the exercise of his plenary power to use military force, the President's decisions are for him alone and are unreviewable. }

John Yoo, The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them, OLC (2001.09.25), Conclusion.

Think about it folks -- the claim there is that the President may kill or imprison anyone at any time for any reason. In short, that the Constitution gives the President of the United States the powers of a Roman Emperor.

Anyone who says that notion is Consitutional is either a liar or an idiot, and the people who are running this administration are plainly BOTH. Such a proposition is diametrically opposite to the plain meaning of the Constitution and utterly contrary to the principles of the American Revolution.

And I don't care how many fools think otherwise.

The real problem here isn't the Constitution, it's the people of this country. The Constitution does have it's faults, but the changes I think we need are proportional representation in the House, the elimination of the Electoral College, and some form of population based apportionment in the Senate, say 1-6 seats based on size.

But no Constitution is worth anything if it's only used as a smokescreen for criminals and tyrants, and regardless of anything else, the number one priority for this nation going forward is to make very certain that George Bush and Dick Cheney are punished to the fullest extent of the law for their crimes -- even if it takes 20 years or more. Until we do, we won't amount to anything but but what we are right now: a disgraceful failed state wallowing in hypocrisy and foolishness.

# posted by

Charles Gittings : 3:16 PM

"Re Dilan's comment: The difference between the two of us is that I find the Constitution considerably less 'clear' than Dilan does on the issues under discussion. At the very least, one is unlikely to convince people on the other side (whatever the issue) by proclaiming that the Constitution 'clearly' rejects their position, whether the topic is signing statements, affirmative action, or, indeed, the extent of Congress's power under the Commerce Clause."

The problem is, on this one the Constitution IS clear. There's a procedure for Presidents to deal with objectionable legislation. And the text of the Constitution rejects line-item vetoes and forces the President to deal with legislation wholesale. Instead of using that procedure, the President tries to have it both ways by signing the legislation but refusing to enforce it. I might add, though this doesn't effect the analysis, that the reason the President is doing this is not some high minded concern over the Constitution, but because of the poltical costs of a veto.

And you have a controlling recent Supreme Court case saying line-item vetos are unconstititutional.

So what we have left are lawyers making creative arguments. There's nothing wrong with that-- I do it all the time-- but just because lawyers can muddy the waters doesn't mean that the text of the Constitution isn't clear.

"The question for those who take Dilan's position is as follows: Would you support amending the Oath of Office Clause to (something like) the following: 'I will support, protect, and defend the Constitution of the United States, but only as it is defined by the Supreme Court of the United States'?"

No. First of all, Presidents have to obey lower court opinions too. Second, Presidents DO have an obligation to follow the Constitution even when not ordered to by the Supreme Court, by VETOING UNCONSTITUTIONAL LEGISLATION. What Presidents have no Constitutional power to do is sign legislation with their fingers crossed behind their backs, then refuse to enforce laws that they signed. No amendment to the Oath is necessary, because the Presentment Clause prohibits Presidents from doing that.

# posted by

Dilan : 3:45 PM

Just a word to the wise: this whole no-confidence idea would have a lot more credibility if it were presented at a time when there was an unpopular Democratic president facing a hostile Congress. Then everyone could see that Prof. Levinson supports this idea on its abstract merits, not merely as an idle left-wing fantasy du jour, to be forgotten as soon as a Democrat is elected.

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