Our Tricameral (and Dysfunctional) System of Government

Sandy Levinson

Today's New York Times includes a story by Robert Pears, titled "Bush Is Prepared to Veto Bill to Expand Child Insurance." Excerpts follow:

The White House said on Saturday that President Bush would veto a bipartisan plan to expand the Children’s Health Insurance Program, drafted over the last six months by senior members of the Senate Finance Committee. [The current program expires on Sept. 30.]

The vow puts Mr. Bush at odds with the Democratic majority in Congress, with a substantial number of Republican lawmakers and with many governors of both parties, who want to expand the popular program to cover some of the nation’s eight million uninsured children....

The proposal would increase current levels of spending by $35 billion over the next five years, bringing the total to $60 billion. The Congressional Budget Office says the plan would reduce the number of uninsured children by 4.1 million.

The new spending would be financed by an increase in the federal excise tax on tobacco products. The tax on cigarettes would rise to $1 a pack, from the current 39 cents....

White House officials said the president had several other reasons [besides the fact that the proposed legislation would raise cigarette taxes to $1/pack] to veto the bipartisan Senate plan.

“The proposal would dramatically expand the Children’s Health Insurance Program, adding nonpoor children to the program, and more than doubling the level of spending,” Mr. Fratto[, the White House spokesman,] said. “This will have the effect of encouraging many to drop private coverage, to go on the government-subsidized program.”

In addition, Mr. Fratto said, the Senate plan does not include any of Mr. Bush’s proposals to change the tax treatment of health insurance, in an effort to make it more affordable for millions of Americans.

Senator Charles E. Grassley of Iowa, the senior Republican on the Finance Committee, said he would like to consider such tax proposals. But, he said, “it’s not realistic — given the lack of bipartisan support for the president’s plan — to think that can be accomplished before the current children’s health care program runs out in September.”

There are so many things that could be said about this story, beginning with the political and moral corruption of an administration that is spending over $325,000/soldier/year in Iraq (according to a recent column by Nick Kristoff] on a disastrous war of choice, but I forbear from further unadorned political commentary.

Instead, as is presumably no surprise, I want to return to my major theme, which is the fact that our "hard-wired' Constitution is far more important than the parts that judges (and law professors) obsess about. Here we are dealing with an issue of importance to literally millions of children (and their parents), unlike the basic triviality of, say, the "Bongs 4 Jesus" case (which I think was wrongly decided by the Supreme Court, for what that's worth); indeed, if truth be known, I strongly suspect that the fate of the Children's Health Insurance Program is more important to the actual lives of children than the Seattle-Louisville cases, whose impact at this point is absolutely unknowable (not least, of course, because of Justice Kennedy's cryptic opinion).

And why is it that millions will be deprived of coverage? It's tempting just to focus on the ideological fanaticism of the Bush Administration in favor of destroying governmentally-administered medical programs and not being perceived as raising taxes. But what makes this fanaticism causally relevant is the fact that our Constitution gives the President the legal authority to override by veto any legislation that can't get the support of 2/3 of each House, including, of course, the indefensibly apportioned US Senate. (In South Africa, for example, the President cannot veto bills on non-constitutional grounds, so the fact that President Mbeki has a number of stupid views concerning AIDS is irrelevant with regard to the legal ability of the South African Parliament to pass sensible legislation that might be opposed by the President.)

I will forbear from attacking the particular legitimacy of this President, for I see no good reason to give Hillary Clinton or Barack Obama similar power. Condemning some specific policy-based vetoes while praising others (such as Bill Clinton's veto of the egregious bankruptcy bill) is a little like the ultimately pointless debates over "judicial activism." If one really doesn't want such "activism," adopt Mark Tushnet's suggestion to abolish judicial review. Otherwise, it's only a debate about which judges' distinctive ideological visions will be written into law in opinions that will be prasied or condemned depending on whether or not the observer shares the visions. Ditto re the presidential veto. I'm ready to abolish it, at least when not founded on serious constitutional objections.

It is hard enough to run the hurdles posed by a bicameral system where, unlike many countries around the world, each House has an absolute veto on the other. It is, I believe, indefensible to give a single individual, who has no conceivable claim to greater legitimacy than the collective House and Senate, the power to set aside their expressed political judgment. As noted above, I am willing to support a presidential veto based on constitutional doubts about legislation; this is why I refused to join in criticizing the Bush Administration for the very idea of issuing signing statements or arguing that the President has no duty to enforce laws that would, in his view, violate the Constitution. But none of this justifies the countermajoritarian policy-based presidential veto that contributes to the ever-increasing, well-merited, view of the American public that nothing really can get done through our present political system.

Consider a recent column by Benjamin Wittes, on "The Supreme Court's Looming Legitimacy Crisis,"based on the fact that the Court enjoys an approval rating of only 51%, though that is almost exactly double Bush's or Congress's rate of 26%. Frankly, a legitimacy crisis for the Supreme Court may not be all that important, given the demonstration by Fred Schauer in his Foreword to last November's Harvard Law Review that relatively little that the Court does affects the lives of most Americans. (Our Balkinization colleague Mark Graber had earlier made this point by way of demonstrating the de Tocqueville was simply wrong, even at the time he was writing, in suggesting that all, or even most or many, political issues are transformed into legal issues to be decided by the judiciary.) From the perspective of ordinary Americans, the most important decision this term might be the outrageous reading of the state of limitations regarding filing for claims of employment discrimination against women.

But if Wittes is willing to use the term "legitimacy crisis" with reference to a Supreme Court that decides relatively few issues of major importance to most Americans--and still hangs on, even if by only a fingernail, to majority approval--then aren't we facing a far more serious legitimacy crisis with regard to the institutions that purportedly do deal with pressing issues? Quite remarkably, there are no serious independents running for the White House this year. If Mayor Bloomberg runs, it will be apparently on a "good government, non-partisan" platform. But at what point will we face our home-grown Mussolini who will call on us to scrap our ostensibly "beloved" Constitution because of its ever more patent dysfunctionality? How, exactly, will we answer such a critique? We already are seeing this, of course, with regard to fighting the "war on terror," and Guiliani certainly has the fascist persona, though he is running a one-issue campaign based on the "war on terror." What happens when a more Poujadist figure, say someone like Lou Dobbs, turns to domestic policy and declares that it is time for a strongman to rule by decree? Can it really "not happen here"? Why not? It's certainly not because the US is functioning so well under the parts of our 18th Century Constitution that have undergone no "constitutional moments."

Indeed, consider the possibility that the major "constitutional moments" of the past quarter-century may have been 1) the de-facto adoption by the Senate of a 60-vote requirement for almost any legislation of substance, which, obviously, only makes it ever less likely that Congress can effectively respond to issues facing the United States and 2) the ever-increasing politicization of the administrative agencies by aggressive presidents who have become frustrated at congressional inaction, a development brilliantly set out (and defended) by Elena Kagan in a Harvard Law Review article on the Clinton administration's use of administrative agencies.

Justice Brennan began his great dissent in McClesky v. Kemp by asking us to imagine how Warren McClesky's lawyer would explain to him why he was going to be put to death in spite of conclusive evidence that the Georgia legal system was over 4 times as likely to kill a black murdere of a white person than any other murderer (white-white, white-black, black-black). So how do we explain to children (and their families) why they will not have better health coverage even if healthy (pun intended) bi-partisan majorities (but not 2/3 in each House) of both the United States House and Represenatives and United States Senate are willing to give it to them?
And should we expect them to pledge allegiance, without reservation, to a flag that is supposed to signify a "republic" pledged to "justice for all"?

There are, incidentally, approximately 555 days remaining int he Bush Admninistration.
Posted 1:06 PM by Sandy Levinson [link]