Sunday, November 19, 2006

No confidence (either in Bush or the Constitution)

Sandy Levinson

I note an especially interesting story in today's Washington Post about all of the rats who are leaving Bush's obviously sinking ship. Can there be any doubt that if we had a truly functional Constitution, we would today be discussing the forthcoming vote of "no confidence" in a criminally incompetent (and, perhaps, criminal as well) administration by, say, 2/3 of Congress assembled together and which Republican would be picked by the Republican caucus in Congress (subject to confirmation by the entire Congress meeting) to serve out the remainder of the term before a new election could designate a popularly-supported successor? Or are there still Balkinization regulars (among the discussants, obviously, not the "masthead" contributors) who thank their lucky stars that George W. Bush will be Command-in-Chief for twenty-six more months and thus bless a Constitution that assures his continued occupancy of the White House.


I am from the Netherlands were we have a rule of confidence. The only way the administration can remain in power is if it is supported by a simple majority in the House. I would like to add that there is no such provision in our constitution. The rule of confidence is an unwritten rule.

At some point in our history the King got nervous about the revolutions throughout Europe and decided to give power to congress. However he retained the power to chose his administration. The administration got into a conflict with the House. The administration refused to cave in and the House used it's power to block the entire budget. The administration decided to disolve the House and order general elections but the newly elected House blocked the budget again. After dissolving the House a second time, the newly elected House threatened to block the budget once again and the administration left. Since then we have the rule of confidence.

So there is no need to change your constitution if Congress is decided on claiming this power.

However I would suggest that this couldn't or shouldn't happen in the US. The reason is that you chose to have an elected president. By electing the president he has his own mandate and responds directly to the people. He directly represents the people.

Congress is represents by the people as well. If you enter a rule of confidence than the president can only remain if a (super)majority of the representatives of the people say so. You'd have to bodies representing the people quarling. I would argue against mixing the systems up unless you are willing to subject the president to the will of congress (as the administration is with us)

The only ones of repealing the mandate given by the people to the president would be to let them (in a formal way) revoke their support. Maybe a system in which a 2/3 majority of congress could force an up or down vote/election on the sitting president would be an option.

Could you define "truly functional? I'm having a bit of trouble distinguishing it from "Sandy Levinson likes it."

Personally, I don't have to like something to admit it's still working.

Professor Levinson,

This administration ranks as one of our nation's great embarrassments, even shames. But it's no reason to blame, or change our constitution. The flaws in our system may not serve simple populist notions of democracy, but there are cogent arguments against such systems. Partisan complaints are a poor reason for a Constitutional Convention.

Your book, "Our Undemocratic Constitution," makes a strong case against the disproportionate power of small states, and that might be reason to call for a new Constitutional Convention. But here strictly partisan reasoning is against you. The recent win by the Democratic party cannot reasonably be viewed as some kind of national outpouring of sentiment against the rising tide of social conservativism nor against the rule of big business. It has been said Bill Clinton was the best Republican President this nation has seen in many a year. These are not the Democrats I suspect you would want helping you draft a new Constitution. Nor is our semi-literate, MTV and Fox-news sated electorate the gaggle of persons on whom I could reasonably pin my hopes of seeing a better document drafted.

Your arguments remind me of the maxim, "The best is the enemy of the good." Like our entire system of law, our Constitution is horribly flawed. But it's better than it could be, and it permits of change, no matter how arduous the task of creating that change. I tend to think it is good, if not "best," and I would rather spend my time working within it, to better it, than run the risk of this electorate or this Congress give us something so very much worse.

Robert Link

Anne already mentioned the fundamental problem -- it's undemocratic at a basic level for Congress to remove a President elected by the people as a whole.

This issue was discussed at the Convention:

"In all public bodies there are two parties. The Executive will necessarily be more connected with one than with the other. There will be a personal interest therefore in one of the parties to oppose as well as in the other to support him. Much had been said of the intrigues that will be practised by the Executive to get into office. Nothing had been said on the other side of the intrigues to get him out of office. Some leader of party will always covet his seat, will perplex his administration, will cabal with the Legislature, till he succeeds in supplanting him." Gouvernor Morris, July 24, 1787, emphasis added.

The selection of the Executive was one of the most contentious issues at the Convention, some favoring selection by Congress, others favoring election by the people. I'll let Madison summarize the problem with selection by Congress (Morris alluded to it in the passage quoted above):

"The election must be made either by some existing authority under the Natil. or State Constitutions-or by some special authority derived from the people-or by the people themselves. -The two Existing authorities under the Natl. Constitution wd. be the Legislative & Judiciary. The latter he presumed was out of the question. The former was in his Judgment liable to insuperable objections. Besides the general influence of that mode on the independence of the Executive, 1. the election of the Chief Magistrate would agitate & divide the legislature so much that the public interest would materially suffer by it. Public bodies are always apt to be thrown into contentions, but into more violent ones by such occasions than by any others. 2. the candidate would intrigue with the Legislature, would derive his appointment from the predominant faction, and be apt to render his administration subservient to its views. 3. The Ministers of foreign powers would have and make use of, the opportunity to mix their intrigues & influence with the Election. Limited as the powers of the Executive are, it will be an object of great moment with the great rival powers of Europe who have American possessions, to have at the head of our Governmt. a man attached to their respective politics & interests. No pains, nor perhaps expense, will be spared, to gain from the Legislature an appointmt. favorable to their wishes."
Madison, July 25, 1787.

There were also theoretical reasons against it. Madison again (July 17, 1787):

"If it be essential to the preservation of liberty that the Legisl: Execut: & Judiciary powers be separate, it is essential to a maintenance of the separation, that they should be independent of each other. The Executive could not be independent of the Legislure, if dependent on the pleasure of that branch for a reappointment. Why was it determined that the Judges should not hold their places by such a tenure? Because they might be tempted to cultivate the Legislature, by an undue complaisance, and thus render the Legislature the virtual expositor, as well [as] the maker of the laws. In like manner a dependence of the Executive on the Legislature, would render it the Executor as well as the maker of laws; & then according to the observation of Montesquieu, tyrannical laws may be made that they may be executed in a tyrannical manner."

Note that the problems arising from the Legislative appointment of the Executive apply almost equally to the Legislative removal of the Executive.

The question may fairly be asked, "if the President should not be appointed or removable by the Legislature, why provide for impeachment?". Again, this was debated at the Convention (July 20, 1787). Pinkney, Morris, and King all opposed the idea. In King's words:

"He wished the House to recur to the primitive axiom that the three great departments of Govts. should be separate & independent: that the Executive & Judiciary should be so as well as the Legislative: that the Executive should be so equally with the Judiciary. ... The Executive was to hold his place for a limited term like the members of the Legislature: Like them particularly the Senate whose members would continue in appointmt the same term of 6 years he would periodically be tried for his behaviour by his electors, who would continue or discontinue him in trust according to the manner in which he had discharged it. Like them therefore, he ought to be subject to no intermediate trial, by impeachment."

Ultimately, Morris conceded the point: "Mr. Govr. MORRIS admits corruption & some few other offences to be such as ought to be impeachable; but thought the cases ought to be enumerated & defined".

The meaning of the phrase "high crimes and misdemeanors" is opaque today and probably was in 1787 too. Tradition more than by Constitutional limitation makes it difficult to remove the President. Given the reasoning at the Convention, that tradition seems to me to have achieved the right balance.

Professor Levinson:

Let us take your thought experiment to its logical conclusion...

If we were in a parliamentary system where a vote of no confidence would be needed bring new elections before the term of the government is completed, a GOP parliament never would have provided such a vote of no confidence in a negative political environment and the Dems never would have narrowly taken power with a 40% turnout during an off year election with the prime minister still in power...


Maybe a parliamentary system has its advantages.

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