Two types of constitutional crises

Sandy Levinson

As 738 days remain in the Bush presidency, I offer the following analysis of two distinct types of constitutional crises. The first might be described as actions that run counter to the Constitution, so that the "crisis" is defiance of presumptive constitutional imits. We have obviously had a lot of discussion of whether Bush's NSA policies and the like represent this kind of crisis. (One can obviously discuss a great deal of other presidential actions of more admired presidents in the same vein, the most prominent example obviously being Abrham Lincoln.)

But I want to insist that we can label as a genuine "constitutional crisis" the problems posed by the existing Constitution, at least in certain contexts. To adopt Justice Powell's language from a different context, we might view this "Type 2" crisis as occurring "because" of the Constitution, not "in spite of" the Constitution, as is the case with a Type 1 crisis.

What's an example of a Type 2 crisis? Let me suggest, because I'd be surprised if anyone would seriously disagree, is the consequences in 1860 and, only a bit less seriously in 1932, of the long hiatus between the repudiation of a sitting president (who thereby becomes a discredited lameduck) and the inauguration of the successor. This means that we in effect had no politically legitimate government during the Secession Winter of 1860; the same was effectively true, with regard to crafting international economic policy, between November 1932-March 1933. Most of the time the extended transition is of no great import (though i still believe it is a serious defect in our political system). But, every now and then, it can generate a genuine crisis.

So I believe that we can legitimtaely speak in our own time--i.e., this very day--of a deepening Type 2 constitutional crisis created by an increasingly politically illegitimate president who nonetheless retains his constitutional power to engage in all sorts of dandgerous policymaking. One can argue, of course, that it would be a Type 1 constitutional crisis if Bush ordered an attack on Iran, since one might well believe that he has no authority to do so in the absence of congressional authorization--and it is Humpty-Dumptyish to argue that the AUMF was a permanent delegation of warmaking power, anywhere and everywhere, to the President. But much of what Bush wishes to do is not unconstitutional, but simply, according not only to hotheads like myself but people like Republican Senator Chuck Hagel, potentially disastrous. To be sure, it is not the case that the Constitution leaves us without legal recourse. Even in the absence of a no-confidence procedure that would terminate Bush's presidency, Congress has the legal power to cut off funding. The problem, though, is that the Constitution itself makes such action extremely difficult, if not impossible, beginning with the presumptive ability of Senate Republicans to filibuster such a bill (I put to one side debates about the constitutionality of the filibuster) and extending to Bush's ability to veto any cut-off legislation. Of course, if Congress simply fails to pass a bill funding the armed forces at all, that would presumably do it, but aside from the fact that no sane person advocates such legislation, I think it's fair to say that such a "strike" by Congress, with regard to its responsibilities to provide for "the common defense" would itself count as a full-fledged Type 2 constitutional crisis.

Consider another example of a Type 2 constitutional crisis. Assume that, for whatever reason, George Bush leaves the presidency. Obviously, Dick Cheney would become President; that's just what the Constitution provides in the case of a vacancy. But wouldn't that itself be a crisis, inasmuch as an overwhelming percentage of the population (with good reason, I would suggest) regards him as basically demented? So then let's assume Cheney has a heart attack. The successor, under the Succession in Office Act, would be Speaker of the House Nancy Pelosi. Putting to one side well-justified arguments that the SOA is unconstitutional, this succession would itself be a type-2 crisis inasmuch as it would provide that the opposition party takes over the White House without an intervening election. Some of you might wish to direct sneers at Speaker Pelosi herself; I do not, though I will readily say that I believe that there is nothing in the skills needed to become Speaker of the House, which are very real, that prepares one to be Commander-in-Chief during time of war.

Other examples might be offered of Type 2 ("because of") crisises. I suggest a number of them in my book (which, just so there is no doubt, I of course wish that everyone who logs on to Balkinization would buy and read--why else does anyone write a book than a desire that it be read by as many people as possible?).

Much of this posting is obviously "partisan" inasmuch as it continues my relentless attack on George W. Bush, and I certainly don't expect unanimous agreement with all of my specific examples. (Some of you may relish the idea of a Chaney presidency, after all.) But I respectfully suggest that the analtyic distinction between Type 1 and Type 2 constitutional crises is non-partisan. All it requires is recognition that we indeed have an imperfect Constitution that, on occasion, can be radically dysfunctional for We the People.
Posted 2:28 PM by Sandy Levinson [link]