Balkinization: Continuing notes on life in an (unrecognized) "constitutional dictatorship"

Comments:

Professor Levinson, on this one you are dead wrong. Article II doesn't provide for dictatorial Presidential power. As written, it provides that the President is Commander in Chief of the army and navy and holds the Executive power. Nothing in Article II gives the President the power to ignore acts of Congress or judicial decisions. Rather, Article I clearly gives Congress plenary power over the armed forces; thus, the President acts to command the armed forces only within the restrictions Congress passes. Similarly, the word "executive" comes from "execute", meaning to carry out. What does the executive "execute"? Congress' will. So the executive power, as well, is cabined by the legislative power of Congress. The President has no generalized power outside of whatever Congress gives him to execute.

In other words, the Constitutional structure is quite clear. Unfortunately, courts have treated disputes between the legislative and executive branches as nonjusticiable, and the politics of personality has allowed Presidents to persuade the public that they have more power than they really do. Partisanship, the desire to avoid responsibility, and the desire of many in Congress to become President has stopped Congress from challenging Presidents' actions.

But none of that is the fault of the Constitution. In this instance, the Constitution is perfectly clear. The President is entirely subordinate to the laws passed by Congress pursuant to the plain text of the Constitution. The problem is our political actors do not obey it.

# posted by

Dilan : 4:22 AM

Let me remind you that the one time that it mattered -- when he was voting and not politicking -- the "honorable" John McCain supported torture by voting for the Military Commissions Act of 2006. His position may entitle him to "Honorable" with a capital "H," but he is not honorable.

# posted by

Henry : 5:53 AM

Professor Levinson:

It is so much more reassuring to denounce George Bush as behaving "unconstitutionally" than to address seriously the possibility that the reality is far worse--that he is taking full advantage of the powers in fact granted by our Constitution...

Perhaps there is no escape unless we renounce presidentialism completely and move toward a parliamentary system, though that has many well-known problems.

I believe you have identified the situation perfectly in these two paragraphs.

While the comparisons between our presidency and Musharoff's real life military dictatorship and recent real life martial law are way over the top, our Constitution (at least as it has been interpreted starting with FDR) does provide for an Executive with moderate powers over domestic issues and strong powers over foreign policy and war issues.

The power of the central government and in turn the Executive has been a matter of intense debate and even civil war in our Republic since the beginning. You would have made a good anti-federalist to my federalist.

I would suggest that the "strong executive" model was adopted by our nation when it emerged victorious in literal combat with the "weak executive" model during our Civil War. Lincoln stretched the Article II powers of the Executive to and sometimes beyond their reasonable boundaries, while Davis was nearly completely hamstrung from directing his war by a "weak executive model" which shifted power away from the Executive to the collective bodies of the national legislature and the states. As a result, the Confederacy had no chance of winning the Civil War unless the Union electorate declined to continue the effort in 1864. Instead, the Union voters re-elected their "dictator" President and the Union decisively prevailed in the Civil War.

The strong executive model was reinforced during the FDR Administration when the Courts surrendered and allowed Congress to unconstitutionally delegate legislative and judicial power to a new executive bureaucracy and WWII followed by the Cold War convinced Congress to maintain a large standing army.

For better or for worse, this is the model we have today and, barring the constitutional revolution you have been exploring, this is the model which we will have for our lifetimes.

# posted by

Bart DePalma : 7:16 AM

Setting aside Dilan's quite valid point, which I've repeatedly made myself, that that it's questionable to blame the Constitution for our problems when the Constitution isn't even being followed, the REAL problem here is that the cowardly leadership of a razor thin majority is afraid to rein in the President. Afraid, not because they fear that the army is going to come by and drag them off to cells, but afraid of political consequences.

I will accept that this is a constitutional problem, when Congress has actually tried to restrain the President, by using the as yet unused tools they have available to them. And not before.

You can't blame tools you don't try to use.

# posted by

Brett : 7:23 AM

SL co-edited "Constitutional Stupidities, Constitutional Tragedies" in the late 1990s, so his concerns are not johnny come lately. Ironically, John Yoo provided an essay on the dangers of exaggerating national power. [Not just "legislative."]

So, I don't (like some) think he just writes this way out of "hatred" etc. of the current participant. But, I join Dilan and Brett (and I too said as much before), in noting that the fact a breach should not justify implying an absence of a restraint.

Is the concern that the Constitution is vague enough that there is potential for abuse? But, that vagueness/flexibility is part of its value. It is of course up to us to use such "fire" correctly, and other nations used other methods when their laws might have been somewhat less flexible.

Still, I think Brett is not quite right. There are several reasons why the current Congress has not restrained the President, some involving the nature of each political party, but it is in part a structural issue.

This IS constitutional, even if the potential is still there ... it is clearly harder. The civil rights filibuster was broken, but the rules of the game made it take much longer than it could have.

But, any system has its problems. Again, there are many reasons why the Congress is not blocking the President in ways they clearly CAN right now. A major overhaul might change things some, but new issues will arise.

It is up to the people and their representatives to act correctly, and the means are there to do so now. Major change is unlikely and given the state of things, do we really trust Congress and yes even the people themselves via conventions to do it?

We survived much worse than eight years of misrule after all.

# posted by

Joe : 10:07 AM

Professor Levinson, on this one you are dead wrong. Article II doesn't provide for dictatorial Presidential power. As written, it provides that the President is Commander in Chief of the army and navy and holds the Executive power. Nothing in Article II gives the President the power to ignore acts of Congress or judicial decisions. Rather, Article I clearly gives Congress plenary power over the armed forces; thus, the President acts to command the armed forces only within the restrictions Congress passes. Similarly, the word "executive" comes from "execute", meaning to carry out. What does the executive "execute"? Congress' will. So the executive power, as well, is cabined by the legislative power of Congress. The President has no generalized power outside of whatever Congress gives him to execute.

I think your description of the Constitutional text is undoubtedly true. I've made similar points in the past, and have agreed with Brett when he has. Now, I'm a little less sure.

Let's assume you're entirely right about the Constitutional text. If, though, due to conditions in the real world that text isn't being followed or enforced to achieve the desired result, at what point do we have to acknowledge that we may need to change the text in order to achieve that result?

# posted by

Mark Field : 10:35 AM

I should add that my comments apply to Dilan as well. If the Constitution better defined what is and is not "justiciable" -- the contours of which was debated in the 19th Century too -- perhaps the Court would handle such disputes. And, given Congress is the very creation of "the Constitution," how members act in some fashion is the "fault" of their creator.

# posted by

Joe : 12:10 PM

If a British House of Commons, from the most feeble beginnings, FROM THE MERE POWER OF ASSENTING OR DISAGREEING TO THE IMPOSITION OF A NEW TAX, have, by rapid strides, reduced the prerogatives of the crown and the privileges of the nobility within the limits they conceived to be compatible with the principles of a free government, while they raised themselves to the rank and consequence of a coequal branch of the legislature; if they have been able, in one instance, to abolish both the royalty and the aristocracy, and to overturn all the ancient establishments, as well in the Church as State; if they have been able, on a recent occasion, to make the monarch tremble at the prospect of an innovation1 attempted by them, what would be to be feared from an elective magistrate of four years' duration, with the confined authorities of a President of the United States? What, but that he might be unequal to the task which the Constitution assigns him?

Federalist No. 71

# posted by

mls : 1:48 PM

Couldn't we just ban political parties? The right to free association shouldn't extend to conspiring to limit choices for political office.

# posted by

rmadilo : 2:02 PM

dilan said...

Professor Levinson, on this one you are dead wrong. Article II doesn't provide for dictatorial Presidential power. As written, it provides that the President is Commander in Chief of the army and navy and holds the Executive power. Nothing in Article II gives the President the power to ignore acts of Congress or judicial decisions. Rather, Article I clearly gives Congress plenary power over the armed forces; thus, the President acts to command the armed forces only within the restrictions Congress passes.

This is a remarkable statement.

Exactly which provisions of Article I do you claim provide Congress with "plenary power over the armed forces" enabling the President to exercise his or her CiC power "only within the restrictions Congress passes?"

You may recall that Art. I states:

Section 1. All legislative powers herein granted shall be vested in a Congress of the United States...

In short, Article I only grants Congress the powers enumerated in Article I.

In stark contrast, Article II states:

Section 1. The executive power shall be vested in a President of the United States of America...

Section 2. The President shall be commander in chief of the Army and Navy of the United States.

There is no limiting language here. Article II grants to the President all executive and CiC powers listed in Article II as well as residuary powers which can be reasonably thought of a executive or those exercised by the commander of the military.

However, while Article I limits Congress to enumerated powers, those powers are held to be plenary in cases of overlap with Article II powers because the Article I powers are specific while the overlapping Article II powers are general. In sum, the President may act pursuant to his or her Article II executive or CiC powers except when Congress is acting pursuant to an enumerated Article I power.

Therefore, if you believe that Congress has plenary command and control over the military, then you need to be able to point to a provision of Article I granting such powers.

Of course, there is no provision granting Congress CiC power nor is there any Court precedent expansively interpreting the power "to make rules for the government and regulation of the land and naval forces" as a power of command and control over the military.

Similarly, the word "executive" comes from "execute", meaning to carry out. What does the executive "execute"? Congress' will. So the executive power, as well, is cabined by the legislative power of Congress. The President has no generalized power outside of whatever Congress gives him to execute.

This truncated definition of a government Executive has no basis in the Constitution or common sense. Under your argument, Article II grants the President no power at all. Rather, the President is limited to enforcing legislation enacted by Congress.

Obviously, the Founders who drafted Article II to include express grants of general and specific powers to the President did not view "executive power" to be merely a function of legislation.

The Executive of a government not only enforces the laws, but he or she also manages the government's functions. Command and control over the military is a traditional executive government function. Legislatures do not command militaries and fail miserably when they try to command by committee.

# posted by

Bart DePalma : 2:03 PM

I don't share Mr. DePalma's reading of Article II, but that doesn't mean it's not a possible reading that has strong advocates (including John Yoo). My real question for Mr. DePalma has little to with the interpretive controversy. Rather, it is this: If one assumes, arguendo, that your (and Yoo's) reading is entirely correct, doesn't that make it more, rather than less, important to have a mechanism to be able to get rid of a Commander-in-Chief in whom a substantial majority of the country--and, dare I add, most of the military--has lost confidence? What, precisely, is gained by being stuck with a C-in-C one fundamentally mistrusts?

# posted by

Sandy Levinson : 2:14 PM

"I am a tremendous admirer of Mr. Rich, who has been a powerful voice against the depredations of the Administration."

Just as the reference to Sen. McCain, as "honorable", when he forfeited that quality long ago, could not be allowed to pass with out comment, neither can this.

Professor Levinson, are you a tremendous admirer of Rich's columns in the 1990s and 2000 that told us there was no difference between Bush and Gore and who outright lied about Gore?

We can speculate on this or that textual change but there is no way that we are going to write a constitution that is proof against the abuses that now concern us if we allow the trivialization of our politics that mostly got us here to drop down the memory hole.

Frank Rich's attention has been concentrated by the scaffold he and the NYT helped build. We should not be too quick to forgive.

Sorry for the digression but we would not be having this discussion if Rich and the rest of the elite media had been serious about their jobs a few years ago.

# posted by

Anonymous : 3:29 PM

What, precisely, is gained by being stuck with a C-in-C one fundamentally mistrusts?

If you mean by this question, what could be lost by having a mechanism that makes it easy (easier than impeachment anyway) to remove a President who someone (the Congress, I guess) "fundamentally mistrusts," I would think the answer is "quite a lot."

Of our post-war Presidents, such a mechanism would have jeopardized the presidencies of Clinton, Carter, (possibly) Ford, (obviously) Nixon, (possibly) Johnson and Truman. There is of course no way of knowing whether replacing any of these Presidents (besides Nixon) would have left us, on balance, better off, but I doubt that the benefit would be worth the cost in instability alone.

I also think that you are unduly discounting the utility of impeachment as a remedy. It is probably true that in the current circumstances impeachment is not a practical way of removing both Bush and Cheney from office. However, there is currently an impeachment resolution against Cheney pending before the House Judiciary Committee. If the Democrats want to use this resolution as a means of holding Cheney and the Administration accountable for their actions in Iraq and the War on Terror, they do not need any Republican cooperation to do so.

If the Democrats were to proceed with such a resolution, it is by no means clear that the Republicans would pay no political price for opposing it. A number of Republicans have already lost their seats as a consequence of public dissatisfaction with Bush, and about 15 or so have already announced their retirement this Congress. Depending on what evidence was found in the impeachment investigation, it is by no means obvious that it would be an easy vote to oppose impeachment for all Republicans.

The reason that the Democrats are not proceeding this resolution is that they do not perceive it to be it their political interest to do so. They (quite reasonably) view themselves as having a huge advantage going into the next election, and they don't want to do anything that could screw it up.

Now you may criticize the Democrats for caring more about the next election than about what happens in the meantime with regard to Iraq, torture or whatever. But don't blame the Framers for that.

# posted by

mls : 3:29 PM

The constitution seems to have the status of a sacred document, from which not only procedure, but all that is right and good flows. In the comments above, there are several "arguments" that are commonly found in the world of bible interpretation. That is, it is completely unacceptable that anything the bible says could have an unwanted consequence, to the extent that a Christian does something undesired, it is because he is interpreting the bible incorrectly.

It should be obvious that a constitution should be modified as a nation learns what does and doesn't work. It's curious that this is now considered an outlandish idea.

# posted by

Unknown : 3:58 PM

Professor Levinson:

You are indeed an anti-federalist to my federalist.

I would object to being equated with Yoo and Addington. They actually believe that the President's CiC power is enhanced during wartime and can trump a valid Act of Congress while I do not. My argument is simply that Congress' powers are limited to those enumerated in Article I and, as Judge Mukasey recently noted, do not include the power to restrict or eliminate a valid Executive power.

I prefer the constitutional republic as envisioned by our Founders with its myriad checks and balances over our current unconstitutional bureaucratic state and the parliamentary system you appear to be leaning towards specifically because our original constitutional republic had less concentration of power than does either alternative.

Our current bureaucratic state goes some way towards granting the President legislative and judicial power.

In the case of a parliament, the government is controlled by one party usually led by one PM, which effectively joins all legislative and executive power in one body if not with one man.

In contrast, under our original system, Congress is an independent body from the Executive which has multiple ways to check the Executive.

Despite the changes creating the bureaucracy, all of the checks and balances concerning military operations remain. Congress must declare war for a President to constitutionally begin military hostilities and has to fund the war thereafter.

In the current wars, Congress has twice declared war ala an AUMF and continues to fund the wars. Congress could shut down operations now if they wanted to. They decline to do so, not because they lack the power, but because they know that they will be punished by the voters for surrendering.

Finally, your suggestion for a "vote of confidence" would work far better under a parliamentary system than under our divided branches.

When the parliament calls a vote of confidence, loss of that vote means that the entire government - legislature and executive - is submitted to an election. In order to maintain the balance of power between the independent branches of our system, you cannot simply give Congress alone the power to force the other branch into elections.

Also, it is far more difficult for parliament to call elections to replace the government because the government controls parliament. Under our system, the President and Congress are often both parties. Under those circumstances, the vote of confidence is much more likely to be abused for partisan reasons. Our system is likely to be reduced to a bad parody of Italy with a vote of confidence.

Perhaps these problems can be addressed by giving Congress a vote of confidence to force elections for both the President and Congress at once. However, to maintain stability, I would suggest that you would also need to require a super majority, perhaps 60% votes, to force elections.

# posted by

Bart DePalma : 4:16 PM

Mr DePalma:

Why a supermajority? Leaving aside the fact that the United States has such a provision in place for impeachment (and makes impeachment all but useless), what justification is there? Other countries lack such a supermajority requirement for removal of the president (prime minister, etc), and they are no less unstable for it. I fail to see why a supermajority is required for stability to exist. I'd see the otherway around, having a supermajority requirement allows the president to ignore any sense of compromise and simply sit around and veto things all day.

# posted by

Michael Napolitano : 4:52 PM

Of our post-war Presidents, such a mechanism would have jeopardized the presidencies of Clinton, Carter, (possibly) Ford, (obviously) Nixon, (possibly) Johnson and Truman.

I think you're seriously overstating your case. You're correct when it comes to Clinton and Nixon, but not any of the others. Except for Ford, who wasn't likely to be removed anyway, the rest all had strong support in Congress, much more than sufficient to ward off any plausible removal procedure.

The Clinton example does, however, serve as a warning against making removal too easy. If removal were changed to a simple majority, Congress might well have removed him despite the clear sentiment in the electorate against such removal. We can, of course, argue about the ultimate costs of such removal, but it seems hard to justify writing into the Constitution, in the name of democracy, a procedure which could lead to such an undemocratic result.

If the Democrats want to use this resolution as a means of holding Cheney and the Administration accountable for their actions in Iraq and the War on Terror, they do not need any Republican cooperation to do so.

I assume you mean they could use the impeachment procedure to make their political points; they obviously need Republican cooperation to actually impeach him. The fact is, though, that they could make their political points outside the impeachment context. It's for that reason that the process is likely to be viewed skeptically by the electorate and thus isn't very useful.

# posted by

Mark Field : 4:54 PM

michael said...

Mr DePalma: Why a supermajority? Leaving aside the fact that the United States has such a provision in place for impeachment (and makes impeachment all but useless)...

Impeachment performs another purpose - to remove a President. A vote of confidence only forces an election.

Because impeachment carries a much higher penalty, it should have and I have suggested a higher hurdle. Impeachment requires 2/3 and a crime. I am suggesting the far lesser hurdle of 60% for no reason at all.

...what justification is there? Other countries lack such a supermajority requirement for removal of the president (prime minister, etc), and they are no less unstable for it. I fail to see why a supermajority is required for stability to exist.

Votes of confidence are usually restricted to parliamentary systems where the party controlling parliament votes. Given that most governments do not vote themselves out of power for partisan reasons, having a vote of confidence option is not destabilizing.

However, under our system, different parties can and do control Congress and the Presidency. Therefore, a vote of confidence can and will be used simply to force the opposing party out of the Presidency for nothing more than partisan advantage. Thus, my reference to Italy.

I personally favor the present system. I was merely suggesting an option for Professor Lederman to consider.

# posted by

Bart DePalma : 5:25 PM

"If the Constitution better defined what is and is not "justiciable""

I see no place in the Constitution where the concept even comes up. If any part, any part at all, of the Constitution is "justiciable", then I say, it all must be. Because there is no principled basis for holding otherwise.

The Constitution is ALL binding law, from end to end. No part of it has the status of suggestions, least of all such clear elements as the requirement for a quorum to do business, or that laws be passed by BOTH houses.

It's just the Court running from a fight. Too bad; That fight is part of their job...

# posted by

Brett : 6:22 PM

MLS:

What, precisely, is gained by being stuck with a C-in-C one fundamentally mistrusts?

If you mean by this question, what could be lost by having a mechanism that makes it easy (easier than impeachment anyway) to remove a President who someone (the Congress, I guess) "fundamentally mistrusts," I would think the answer is "quite a lot."

Of our post-war Presidents, such a mechanism would have jeopardized the presidencies of Clinton, Carter, (possibly) Ford, (obviously) Nixon, (possibly) Johnson and Truman. There is of course no way of knowing whether replacing any of these Presidents (besides Nixon) would have left us, on balance, better off, but I doubt that the benefit would be worth the cost in instability alone.

Aside from the wisdom of doing so in these situations, I'd point out that all of the above had better "confidence" than the current malproprietor.

And the Repubs did try to get rid of Clinton (for not losing a single war, and not even a single life in combat that he ordered in). Didn't work. But hard for someone on your side to complain after that that someone else might be setting the bar too low....

Cheers,

# posted by

Arne Langsetmo : 7:45 PM

"Bart" DePalma:

They actually believe that the President's CiC power is enhanced during wartime and can trump a valid Act of Congress while I do not.

You reach the same result, but do so by claiming that whatever you don't like is not a "valid act of Congress" (I'd note for the record that Yoo and Addington have the same argument about inherent preznitential powers that are beyond the reach of Congress, which in essence is the substrate of your argument). How you call that a "Federalist" position is beyond me.

Cheers,

# posted by

Arne Langsetmo : 7:51 PM

Mark Field

Obviously, no one can say with any confidence how a hypothetical removal procedure would apply to the Presidents I named, which is why I merely identified them as those whose presidencies would be jeopardized if it were possible to remove a President for being "fundamentally mistrusted" by the Congress and/or a sizeable portion of the electorate. No doubt it would be less likely to happen in cases of Presidents like Johnson and Carter, who had Congresses controlled by their own party. (Of course, this also suggests that it would not have been any use for the first six years of the current Administration).

I am not sure that I follow your argument on impeachment. While my point was that the Democrats do not need Republican support to conduct impeachment proceedings in the House, it is also true that they could impeach Cheney without Republican support. Conviction and removal, of course, would require Republican support, but if the evidence were strong and the public were convinced of the necessity of removal (which I take to be the premise of Professor Levinson's post), Senate Republicans would be under considerable pressure to vote for conviction. Maybe the end result would be acquittal, maybe censure, maybe conviction. But in any event the proceedings would be a way of holding Cheney accountable.

Do you really think impeachment proceedings would be the equivalent of making statements on the floor or on the Sunday talk shows? I don't think Cheney (or Clinton) would agree.

# posted by

mls : 9:04 PM

Arne

I know, I know, "when Clinton lied, nobody died." Unless you count the Iraqis who died when he bombed them the day before the impeachment vote, and I certainly wouldn't count them. After all, its not like he waterboarded them or anything.

How about a bar that raises up when a Democrat is President and lowers when a Republican is President? Would that work for you?

# posted by

mls : 9:14 PM

No doubt it would be less likely to happen in cases of Presidents like Johnson and Carter, who had Congresses controlled by their own party. (Of course, this also suggests that it would not have been any use for the first six years of the current Administration).

Also Truman. Which just points out the problem that, as others have noted, Congress has no institutional interest in controlling the President (pace Federalist 51). What it has (sometimes) is a partisan interest in doing so. This makes the process of impeachment (meaning, colloquially, both accusation and conviction) essentially useless except in egregious cases of criminal behavior.

You opposed making it easier, using the examples of Truman, Johnson, etc. But those examples don't help your point, they help that of Prof. Levinson, for the reason above.

Do you really think impeachment proceedings would be the equivalent of making statements on the floor or on the Sunday talk shows? I don't think Cheney (or Clinton) would agree.

Sadly, the Republicans so cheapened the process of impeachment by misusing it against Clinton, that I believe the public has come to think of it as a partisan tool. So, no, I don't think it would be much more useful than the usual political process.

# posted by

Mark Field : 9:21 PM

arne langsetmo said...

BD: They actually believe that the President's CiC power is enhanced during wartime and can trump a valid Act of Congress while I do not.

You reach the same result, but do so by claiming that whatever you don't like is not a "valid act of Congress"

Hardly.

Where Article I enumerates a power, such as the power to set rules for Captures, I believe that Congress gets the final ward. Yoo and I believe Addington do not.

However, where Article I does not enumerate a power, such directing the targets of foreign intelligence gathering, then Yoo/Addington and I will agree by default.

(I'd note for the record that Yoo and Addington have the same argument about inherent preznitential powers that are beyond the reach of Congress, which in essence is the substrate of your argument).

It is my argument. Both branches have plenary powers which belong to only that branch. Where the powers overlap, Congress' enumerated powers trump the general Executive powers.

How you call that a "Federalist" position is beyond me.

Easily.

One of the foundations of the Federalist reform of the Republic was to create a federal government strong enough to deal with national issues which the prior confederation of states could not. Perhaps, none of these issues were more important that national defense. This is my position.

In contrast, the arguments made in Anti-Federalist 67 will be very familiar to Professor Levinson and others here.

The wisdom of the Federalist position granting command and control over the military to the President over the desire of the Anti-Federalists to deny much of this power to the Executive was proven during the Civil War, where Lincoln created what was arguably the world's greatest war machine while Davis could not even coordinate simple things like cross country rail transportation. The result was a decisive military defeat for the "weak executive" position.

# posted by

Bart DePalma : 9:25 PM

Mark Field

Actually, the Republicans controlled Congress for two years during the Truman Administration. I was going to note that Truman, who had very low approval ratings and was detested by the Republican Congress, would have been a particularly likely candidate for removal under the hypothetical removal provision. But I didn't bother since (I thought) you essentially agreed with me that it was a bad idea.

I don't follow the point about the partisan interests of the Congress. I wouldn't say that a Congress would never attempt to remove a President of the same political party (see Andrew Johnson), but obviously it is more likely to do so if the President belongs to the opposition. Why does that argue in favor of an easier removal mechanism? If you don't think Congress can be trusted to act for legitimate non-partisan reasons, I would think that you would be even more opposed to the idea.

# posted by

mls : 9:56 PM

MLS, I think there's some confusion here, so let me review how we got to this point.

Prof. Levinson wants to make impeachment easier. Your original post opposed that suggestion. You claimed that if we made it too easy, Presidents like Truman, Johnson, and Carter might have faced impeachment.

My response was simply that these were bad examples. None of these Presidents ever had to face a Congress likely to impeach them under any conceivable amendment.* They were never, to use your word, in "jeopardy" of impeachment.

Now we get to Clinton. This example actually works against Prof. Levinson because it shows how the abuse of impeachment might lead to a result contrary to the clear sentiments of the American people.

So, while I am skeptical of making impeachment easier, I thought your examples, other than Clinton, were not good ones.

*Truman did face a Republican Congress, but he was not all that unpopular at that time. The Rs held Congress from 1946-8, at which time Truman was in no risk of impeachment from them or anyone else.

I wouldn't say that a Congress would never attempt to remove a President of the same political party (see Andrew Johnson), but obviously it is more likely to do so if the President belongs to the opposition. Why does that argue in favor of an easier removal mechanism? If you don't think Congress can be trusted to act for legitimate non-partisan reasons, I would think that you would be even more opposed to the idea.

Agreed. The problem is, though, that we're then stuck with a President for 4 years, pretty much no matter how bad he is. The partisan nature of the removal process exacerbates this.* To this extent, Prof. Levinson has a real point.

*I believe Johnson remained a Democrat.

# posted by

Mark Field : 11:07 PM

Just for the record, I don't want "to make impeachment easier." Instead, I am advocating amending the Constitution to make it possible to fire a president when he/she loses the confidence of 2/3 of the Congress assembled together. Impeachment, alas, generates a legalistic conversation about "high crimes and misdemeanors." That is just the conversation I want to sidestep in favor of the far more relevant question of whether we have sufficient confidence in the judgment of a president in matters of peace and war, life and death.

I find Mr. DePalma's suggestion to tie such a vote to ordering new elections for the Congress as well intriguing. That would certainly be desirable in the case where the "no confidence Congress" is not willing simply to let the congressional caucus of the president's own party pick the successor (until the next regularly scheduled election).

The fact is that we can have no real idea of how a "no confidence" procedure might have affected American politics over the past 200 years. One might expect, for example, that presidents themselves might have behaved a bit more cautiously if they feared the possibilty of being bounced.

# posted by

Sandy Levinson : 11:25 PM

If that is your object, couldn't you achieve more or less the same result by adding "maladministration" to the grounds of impeachment? I am afraid that whatever amendment you propose, it will not solve the tendency to view the issue in a legalistic fashion-- that is more of a cultural problem.

Mark Field- did I say "see Andrew Johnson"? I meant to say "cf Andrew Johnson." :)

# posted by

mls : 11:48 PM

If that is your object, couldn't you achieve more or less the same result by adding "maladministration" to the grounds of impeachment?

There's a pretty good argument, on originalist grounds, that the word "misdemeanor" means "maladministration" or something like it. It hasn't worked out that way, in practice, of course, so modernizing the word may not help that much.

Personally, I would prefer to clip the wings of the President a little by restricting some of his Constitutional powers, rather than give Congress the ability to remove him. For example, we could reduce the veto override to 60%; or constitutionalize the War Powers Act; or clarify the express duty to obey laws passed by Congress; etc.

I prefer trying these first because I'm frankly cynical about the culture of Congress. That's particularly the case where Congress, as now constructed, is SO undemocratic (the Senate for obvious reasons and the House because of gerrymandering).

Remember, too, that the Founders rejected having Congress appoint the President. Without revisiting all those arguments, I think they're basically good ones; making the President too dependent on Congress seems to me a mistake.

# posted by

Mark Field : 11:28 AM

"Bart" DePalma:

This truncated definition of a government Executive has no basis in the Constitution or common sense. Under your argument, Article II grants the President no power at all. Rather, the President is limited to enforcing legislation enacted by Congress.

Yes. And?!?!?

Obviously, the Founders who drafted Article II to include express grants of general and specific powers to the President did not view "executive power" to be merely a function of legislation.

While I realise that this is quite "obvious", some supporting evidence for this proposition might be useful to enlighten the slowe ones amongst us.

The Executive of a government not only enforces the laws, but he or she also manages the government's functions....

Which is why we have budgets and appropriations ... oh, wait. And also, I guess, this enormous body of "regulations" ... but then again, regulations can be struck down if they are not authorised (or fall outside) by "enabling legislation", because the power to legislate is a plenary legislative power.

... Command and control over the military is a traditional executive government function....

But nonetheless, the power to regulate the miilitary is a plenary legislative one ... as is the power to declare war. If one is confoozed enough to claim that the "CinC" needs to be able to "command and control" the military because only a single commander can do so, then such logic would dictate that the most important decision there should hardly reside with Congress ... but it does.

... Legislatures do not command militaries and fail miserably when they try to command by committee.

That is once again self-obvious. But some supporting evidence would once again be appreciated for the slow ones amongst us who want more that self-obvious assertions.

Cheers,

# posted by

Arne Langsetmo : 12:13 PM

"Bart" DePalma:

["Bart"]: They actually believe that the President's CiC power is enhanced during wartime and can trump a valid Act of Congress while I do not.

[Arne]: You reach the same result, but do so by claiming that whatever you don't like is not a "valid act of Congress"

Hardly.

Where Article I enumerates a power, such as the power to set rules for Captures, I believe that Congress gets the final ward. Yoo and I believe Addington do not.

However, where Article I does not enumerate a power, such directing the targets of foreign intelligence gathering, then Yoo/Addington and I will agree by default.

Nice "straw man" (and repeated for the forty-seventh time). Congress has not "direct[ed] the targets of foreign intelligence gathering". They have "directed" (i.e., regulated) the means and methods, and as I said before, in their capacity to regulate the military, they could (if they wanted and were stoopid enough to do so), with no insult to the Constitution, direct the military to go into battle (as the CinC sees fit) armed only with sporks (I'd note that is sporks are regular equipment as prescribed by Congress, the preznit could as "CinC" also insist that the troops advance with only sporks fixed and at the ready).

Cheers,

# posted by

Arne Langsetmo : 12:28 PM

It seems the author and commentators are counting angels dancing on the head of a pin. The unfortunate fact is that governmental action, illegal, or merely foolish, flourishes in direct proportion to the ignorance of the people. Governmental will always adapt-- changing it to, for instance, ease the executive from office, is an empty gesture in light of a populace which hasn't the foggiest idea what its rights are, let alone how they are transgressed or secured. This abdication of responsibility has and will never create more liberty-- government is too tasty for that-- it will, as always, lead to increasing tyranny. Hate to sound nihilistic fellas, but the game has been lost. Like the Romans, we have willingly divested ourselves of the republic.

# posted by

James : 12:55 PM

arne:

My post was directed at dilan, who is perfectly capable of making his own arguments.

For your edification...

If you want to know what powers Article II grants to the President, try reading Article II.

If you want to confirm that no Court in the land has ever held that the Article I power "to make rules for the government and regulation of the land and naval forces" is a power of command and control over the military, go do your own research. We have discussed this before and you have never offered any precedent for your position while I have offered multiple cases in the past where the Court interpreted this provision as simply giving the Congress the power to regulate the good order and discipline of the uniformed military through legislation such as the UCMJ.

Finally, FISA requires warrants to perform electronic intelligence gathering against "US persons," which makes it impossible to gather intelligence against "U.S. persons" to determine whether they are foreign enemy combatants. This is choosing the targets against which foreign electronic intelligence gathering may be directed.

Means of intelligence gathering is the physical plant used to conduct the gathering. In the case of the TSP, that would the the telecom connections and the NSA computers.

Methods of intelligence gathering is the technique employed. In the case of the TSP, that would be datamining.

FISA in no way directs the means or the methods of intelligence gathering. In the case of the TSP, FISA limited the targets against which electronic surveillance of any kind can be employed. Absent an Article I power, FISA is unconstitutional to the extent that it directs targets of foreign intelligence gathering.

# posted by

Bart DePalma : 1:18 PM

"Bart" DePalma:

arne:

My post was directed at dilan, who is perfectly capable of making his own arguments.

So why bother to answer me. Just let my potshots stand unanswered then.... Hell, you usually do when you get zinged.

For your edification...

If you want to know what powers Article II grants to the President, try reading Article II.

Yes. And?!?!?

If you want to confirm that no Court in the land has ever held that the Article I power "to make rules for the government and regulation of the land and naval forces" is a power of command and control over the military, go do your own research....

<*Pssst!!! sotto voce*> "Bart" ... your "straw man" is showing again....

... We have discussed this before and you have never offered any precedent for your position while I have offered multiple cases in the past where the Court interpreted this provision as simply giving the Congress the power to regulate the good order and discipline of the uniformed military through legislation such as the UCMJ.

Oh, BS. Title 10 is replete with stuff far above and beyond the UCMJ, and you pretend that it's all "unconstitutional".

Your cases have been addressed and shot down. You ply the same tripe once again pretending that no one rebutted you. Give it a rest, fergawdsake....

Finally, FISA requires warrants to perform electronic intelligence gathering against "US persons," which makes it impossible to gather intelligence against "U.S. persons" to determine whether they are foreign enemy combatants. This is choosing the targets against which foreign electronic intelligence gathering may be directed.

No. It's regulating the methods and procedures. Commander Codpiece can tap 'em; he's just got to get a warrant (or more specifically a FISA court order) first. "Regulation", you see.

Means of intelligence gathering is the physical plant used to conduct the gathering....

... as is discussed and delineated in 10 USC § 1801(f)....

... In the case of the TSP, that would the the telecom connections and the NSA computers.

... and other things.

Methods of intelligence gathering is the technique employed. In the case of the TSP, that would be datamining.

Yes. Congress can ban that. Glad you agree. Oh ... right ... they did. What result?

FISA in no way directs the means or the methods of intelligence gathering....

Au contraire. It specifies that the gummint must present evidence first and seek a warrant.

... In the case of the TSP, FISA limited the targets against which electronic surveillance of any kind can be employed. Absent an Article I power, FISA is unconstitutional to the extent that it directs targets of foreign intelligence gathering.

Even the maladministration won't make that claim in court. You're holding the bag alone, "Bart".

But we've been through it thirty-seven times before. Take it to your own blog if you think it bears repeating.

Cheers,

# posted by

Arne Langsetmo : 3:02 PM

Slightly OT question (pardon me, folks):

"Bart": Do you agree that Congress may legislate (should they so be wont) that all soldiers must go into combat armed with sporks and nothing else?

Yes or no.

Anyone else with an opinion, feel free to chime in.

Cheers,

# posted by

Arne Langsetmo : 3:05 PM

arne langsetmo said...

Slightly OT question (pardon me, folks):

"Bart": Do you agree that Congress may legislate (should they so be wont) that all soldiers must go into combat armed with sporks and nothing else?

(And forgive me for answering OT...)

If you meant that as a generic hypothetical meant to simulate the effect of FISA on our intelligence gathering, then you have succeeded.

In any case, I cannot think of a provision of Article I which gives Congress the power to set the Table of Organization and Equipment (TO&E) of the Army. That is a CiC function.

On the other hand, Congress has the power to purchase nothing but sporks for the troops. Historically, Congress has often been nearly that cheap with our armed forces.

Do you have a point to make here?

# posted by

Bart DePalma : 3:35 PM

"Bart" DePalma:

So is this constitutional? Could it be repealed or modified? How about this?

Cheers,

# posted by

Arne Langsetmo : 4:03 PM

"Bart" DePalma:

In any case, I cannot think of a provision of Article I which gives Congress the power to set the Table of Organization and Equipment (TO&E) of the Army. That is a CiC function.

BTW, that wasn't the question (although it suggests the question: "Can Congress write the "Table of Organization and Equipment", rather than leaving it as a regulation, if it wants?").

Here's the question (again):

"Bart": Do you agree that Congress may legislate (should they so be wont) that all soldiers must go into combat armed with sporks and nothing else?

Cheers,

# posted by

Arne Langsetmo : 4:20 PM

Arne:

A TO&E sets forth the equipment the troops carry into battle.

For the second time, I do not see the provision of Article I which provides Congress with the power to determine the TO&E, to wit, what the troops carry into battle.

The military generally uses what it is provided by Congress. However, the commander may decide where and when the equipment will be used and troops often capture and use enemy equipment. Congress has no power to make these decisions.

So is this constitutional?

Under 10 USC 351, Congress appears to be authorizing the President to commandeer private ships for military duty.

Congress should have this power pursuant to the Takings Clause and the N&P Clause.

Under the Youngstown decision, it is doubtful that seizure of private property for wartime uses is an Executive CiC power. Thus, the need for Congress to act.

10 USC 351 does not attempt to assume the CiC power of determining how the commandeered vessels should be armed.

How about this?

10 USC 2457 is simply a resolution providing the sense of Congress that the military should obtain equipment which is compatible with that of our NATO allies. Given that, as I noted above, that Congress has the power to buy the equipment, this gives the military a heads up on what to request from Congress.

Once again, this law does not attempt to set the TO&E for military units.

# posted by

Bart DePalma : 5:07 PM

"Bart" DePalma:

Under 10 USC 351, Congress appears to be authorizing the President to commandeer private ships for military duty.

No. It authorises him to arm them. Could it be modified? Repealed? State that the preznit may not arm such vessels? State under which conditions he may do so? ... oh, yeah, in fact, it does precisely that....

Congress should have this power pursuant to the Takings Clause and the N&P Clause.

Huh? As Hertz would say, "Not exactly...."

Under the Youngstown decision, it is doubtful that seizure of private property for wartime uses is an Executive CiC power. Thus, the need for Congress to act.

Huh? It doesn't say he can take them. It says he may arm them or have them be armed.

10 USC 2457 is simply a resolution providing the sense of Congress that the military should obtain equipment which is compatible with that of our NATO allies....

As Hertz would say, "Not exactly":

(a) It is the policy of the United States to standardize
equipment, including weapons systems, ammunition, and fuel,
procured for the use of the armed forces of the United States
stationed in Europe under the North Atlantic Treaty or at least to
make that equipment interoperable with equipment of other members
of the North Atlantic Treaty Organization....

OK. "Sense of Congress". Now:

To carry out this
policy, the Secretary of Defense shall -
(1) assess the costs and possible loss of nonnuclear combat
effectiveness of the military forces of the members of the
Organization caused by the failure of the members to standardize
equipment;
(2) maintain a list of actions to be taken, including an
evaluation of the priority and effect of the action, to
standardize equipment that may improve the overall nonnuclear
defense capability of the Organization or save resources for the
Organization; and
(3) initiate and carry out, to the maximum extent feasible,
procurement procedures to acquire standardized or interoperable
equipment, considering the cost, function, quality, and
availability of the equipment.

This is not a demand they procure something. It's a demand that they do certain things when they do procure something.

Doesn't sound like a suggestion to me. Sounds like that's the law. And if NATO arms themselves with sporks.... or 9mm weapons. Let's say that the Doofus-in-Chief thinks that .25 cal weapons might be better suited for certain kinds of battle. Tough noogies? Can he say that U.S. national security is paramount and disregard this law?

... Given that, as I noted above, that Congress has the power to buy the equipment, this gives the military a heads up on what to request from Congress.

No. Congress doesn't have to pass laws stating that 9mm ammunition be bought. But the Chimperator-in_Chief better heed that warning ... and if they don't like his explanation, they can say that 9mm will be used (as I said, if they can pass this law, they may modify it).

Once again, this law does not attempt to set the TO&E for military units.

Didn't say it did. I asked if they could do so if they wanted. I'd note that while Congress is permitted, under our regulatory laws, to delegate the crafting of regulations to the executive (as long as such regulations don't exceed or contravene the mandate of the enabling legislation, Congress is by no means required to do so (except insofar as pragmatic concerns intrude).

I ask again (for third time):

"Bart": Do you agree that Congress may legislate (should they so be wont) that all soldiers must go into combat armed with sporks and nothing else?

FWIW, that was just a quick peruse of Title 10. Title 10 is a huge compendium of all kinds of laws affecting the military, and the UCMJ (which you pretend is all that Article I permits) is just a small part of it.

It's silly (and counterfactual) to read Congress's mandate WRT military affairs in the extremely cribbed and circumscribed ways you do (i.e., consisting of just the UCMJ and actual procurement of supplies).

You seem stuck on this silly notion that Congress may only pass (outside of narrow exceptions) actual spending bills, when in fact their mandate goes far beyond that. But if they can specify that only sporks be bought (which you admit), doesn't this do the same damage to the preznit's "CinC" powers? If so, why are they allowed this but not allowed to specify (w/o "procuremet") the same, when in other areas they are undoubtedly allowed both actual procurement and regulation?

Cheers,

# posted by

Arne Langsetmo : 6:04 PM

arne:

You are straying from your own argument that Congress that the power to order the troops to go into battle armed with sporks. Nothing in either 10 USC 351 or 2457 support this argument.

Now that I have had a chance to study 10 USC 351, I agree with you that this is not a Takings clause based provision. Rather, it appears that Congress is authorizing the President to provide government arms to commercial shipping which would not normally be permitted to possess such arms. This easily falls within Congress' powers over national and international trade and does nothing to advance your "sporks" argument.

However, as I stated before, 10 USC 2457 is simply a resolution providing the general policy intent of Congress that US and NATO arms should be compatible for the guidance of DoD requesting funds. It has no enforcement provision and certainly does not mandate what arms the soldiers must carry into battle. Congress can and has deviated from its own general policy intent by approving funds to obtain non-NATO compatible arms, especially for Special Operations.

# posted by

Bart DePalma : 9:17 PM

Brett notes in response to my comment on nonjusticiability that

"I see no place in the Constitution where the concept even comes up."

Art. III speaks of "cases and controversies." A very early precedent involved the justiciability of advisory opinions. Standing to sue etc. has long been a complex matter of debate in common law.

Take Congress v. the President. A usual technique is to argue that having a couple members of Congress challenge is not enough, since Congress as a body is not challenging. The 11A btw came to pass under the assumption that you cannot always sue everyone.

Likewise, judicial review was a matter of debate, especially in various "political" disputes. Many involved in the framing saw various limits on justicibility. This was 'original understanding' of the words. We are talking both textual and structural issues here.

I'm all for liberal standing rules and so forth, but I'm surely willing to allow that there are various long held limits and areas of debate that a differently worded C. would have clarified or led to things being handled differently.

# posted by

Joe : 11:04 PM

The "honorable" John McCain?

You ought to read this web site called "Balkinization". Some of the law professors there have demonstrated how dishonorable John McCain is.

Among other things, McCain voted for the Military Commissions Act after cosmetic changes and MCCain is also the guy who took a stroll through an Iraqi market wearing body armor, surrounded by troops, and with an aerial escort and declared it the same as walking through a similar market in America. In other words, he attempted to outright deceive the American public on a crucial matter of war and peace.

And you find this man honorable?

# posted by

The Fool : 11:57 AM

"Bart" DePalma:

You are straying from your own argument that Congress that the power to order the troops to go into battle armed with sporks. Nothing in either 10 USC 351 or 2457 support this argument.

You seem to miss the point. What Congress may do, they may refuse to do, or do differently, or even to the contrary.

Now that I have had a chance to study 10 USC 351, I agree with you that this is not a Takings clause based provision....

... but that didn't stop you from opening your mouth, as is usual.

... Rather, it appears that Congress is authorizing the President to provide government arms to commercial shipping which would not normally be permitted to possess such arms....

Huh? Where are they not permitted to "possess such arms" (as may be supplied or specified by this law)?

... This easily falls within Congress' powers over national and international trade and does nothing to advance your "sporks" argument.

Huh? It has to do with military matters. Obviously. Doh.

However, as I stated before, 10 USC 2457 is simply a resolution providing the general policy intent of Congress that US and NATO arms should be compatible for the guidance of DoD requesting funds....

Well, except for that bolded word above, "shall".

... It has no enforcement provision and certainly does not mandate what arms the soldiers must carry into battle....

You're picking at nits here. As I said, it states that, the gummint shall, "initiate and carry out, to the maximum extent feasible,
procurement procedures to acquire standardized or interoperable
equipment...."

If that isn't telling the gummint what types of weapons to use, I don't know.

... Congress can and has deviated from its own general policy intent by approving funds to obtain non-NATO compatible arms, especially for Special Operations.

And Congress can do such.

As I said, no sane person would demand that troops could be sent into battle armed only with sporks. My contention is that nothing in the Constitution prohibits them from doing so; such results are left to the common wisdom and good sense of the deliberative bodies ... just as is the decision to go to war. You might cavil that Congress might make a mistake and roder up a war where none is appropriate, or to refuse to go to war when such is in the nation's best interest, but there it is. As many have commented perhaps best this decision left to teh deliberative bodies rather than the "CinC", as the founders seem to have thought, and as even the esteemed general George Washington pointed out. If they can make "the big mistakes", surely they're not immune from smaller ones too ... but that is best handled by some kind of agreement or consensus, not the whims of a single person.

With the deference given to Congress as to "rational purpose" (see, e.g., Cleburne), Congress could pass laws that say that it's best for people to walk on the left side of sidewalks while skippng and singing "Skip To My Lee, My Darling", if they claimed that they have "found" that such would facilitate interstate commerce.

As I keep repeating, but as you keep ignoring, Title 10 is replete with laws affecting the military in thousands of ways, and only a portion of that is the UCMJ.

See if you can come up with a case where Congress has "overreached" itself in the "regulation" of the military. Has any portion of Title 10 ever been struck down?

Cheers,

# posted by

Arne Langsetmo : 12:29 PM

arne langsetmo said...

As I said, no sane person would demand that troops could be sent into battle armed only with sporks. My contention is that nothing in the Constitution prohibits them from doing so; such results are left to the common wisdom and good sense of the deliberative bodies ... just as is the decision to go to war.

You fundamentally misunderstand the Constitution in general and Article I in particular.

Article I does not say that Congress can do anything it damn well pleases unless a provision of Article I expressly prohibits the act. To the contrary, as I posted above, Section 1 of Article I expressly states that Congress' powers are limited to those expressly enumerated in that article.

As I keep repeating, but as you keep ignoring, Title 10 is replete with laws affecting the military in thousands of ways, and only a portion of that is the UCMJ.

And the provisions of Title 10 to which you have cited were enacted pursuant to the provisions of Article I which apply to spending and trade. None of them purport to command the troops because no provision of Article I grants Congress this power, which was my point at the start of this exercise.

If you can find a provision of Title 10 which directs the operations of the military as FISA directs the intelligence gathering of the NSA, feel free to post it and we can discuss whether it is unconstitutional.

# posted by

Bart DePalma : 1:19 PM

Forgive the off-topic comment, please.

The "honorable" John McCain?

Yes, indeed, he is The Honorable John McCain, just as there is The Honorable Nancy Pelosi, and The Honorable Rick Santorum.

All politics aside, the appellation is conferred by service in the office, not details about the person or even the quality of his service.

Randy Cunningham is, and will always be, The Honorable Randy Cunningham.

# posted by

PMS_CC : 1:48 PM

The "honorable" John McCain? (how does one add italics to a comment?)

Professor Levinson used a lower-case "h," and I drew the distinction between "honorable" and "Honorable" way back in the second posting on this thread.

# posted by

Henry : 2:55 PM

"Bart" DePalma, with his favourite "straw man" repeated for the 37,924th time:

If you can find a provision of Title 10 which directs the operations of the military ...

Non one has said "directs". We've said "regulat[es]". If Congress can regulate (and even prescribe) uniforms, and it can, it can just as well prescribe ammunition (as I've pointed out). There's not a single cent allocated in that law that mandates, "to the maximum extent feasible", that we standardise on ammunition. It's effin' NOT a spending bill.

You fundamentally misunderstand the Constitution in general...

Look, "Bart", I'm not the moron that keeps misciting cases around here.

Your "view" of the Constitution may be defencible in the abstract (as your idealized conception of what it ought to be read to say), but it sure as hell doesn't comport with either the general common understanding or the nitty-gritty of reality. You're on your own.

I note you don't have any cases where Title 10 law has been struck down as an "overreach" which has impinged on the preznit's Constitutional prerogatives.... Hell, even the War Powers Act (which I find flawed for othert reasons) has withstood the test of time.

Cheers,

# posted by

Arne Langsetmo : 3:41 PM

arne langsetmo said...

Your "view" of the Constitution may be defencible in the abstract (as your idealized conception of what it ought to be read to say), but it sure as hell doesn't comport with either the general common understanding or the nitty-gritty of reality. You're on your own.

Silly me for being "unrealistic" enough to actually take the Constitution at its words.

Then again, I also meant it when I raised my hand and swore to "support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same.."

I believe that says all that needs to be said on the subject.

# posted by

Bart DePalma : 9:16 PM

Bart: The wisdom of the Federalist position granting command and control over the military to the President over the desire of the Anti-Federalists to deny much of this power to the Executive was proven during the Civil War, where Lincoln created what was arguably the world's greatest war machine while Davis could not even coordinate simple things like cross country rail transportation. The result was a decisive military defeat for the "weak executive" position.

Ah, the old trains running on time argument. The superiority of Stalinism I guess was then proved by his victory in WWII? And Franco's victory over the the Republicans in the Spanish Civil War proves the superiority of phalangist organization?

In the short term, authoritarianism always wins. That makes no argument about the sustainability of the system whatsoever. But then this is the kind of fool who thinks the US has had the greatest leaders the world has ever seen, that disappearing people is reasonable, and that the Apache had what was coming to them, by being weak and resisting.

How can you argue with an agenda like that? It's like arguing with Hitler on the legal particulars of the Enabling Act.

# posted by

RandomSequence : 11:47 AM

randomsequence:

Are seriously arguing that Lincoln and FDR were fascists?

To recap, my point was that I hold a Federalist position while Professor Levinson is making arguments to hamstring the Executive which were made by the Anti Federalists back during the constitutional debates.

The Federalist constitutional reform hardly concentrated all power in the Executive to create a fascist dictatorship. Rather, the Federalist Constitution granted the President enough power to perform the most basic function of the Executive - set foreign and military policy. Even this most basic of national executive powers was checked by plenary congressional powers enumerated in Article I.

The Articles of Confederation and whatever constitution used by the CSA were demonstrated failures while our federalist Constitution is arguably the most successful such document in history at running a continental nation state while allowing its citizens a wide breadth of freedom.

# posted by

Bart DePalma : 12:58 PM

"Bart" DePalma:

Silly me for being "unrealistic" enough to actually take the Constitution at its words.

If you did that, we wouldn't have any truck with you. But where in the Constitution does it say that Dubya has plenary powers to engage in whatever snooping he wants, free from any Congressional regulation? Sorry, I just don't see the work "intellignece" anywhere in the Constitution. I still thikn you tilt at windmills of your own mind here.

Cheers,

# posted by

Arne Langsetmo : 2:08 PM

Bart,

Are you seriously arguing that Lincoln and FDR were not authoritarians? Seriously? My argument is that you're so attracted to them because you are a fascist. But they clearly were not "fascists", but other breeds.

FDR was attracted to fascism, and did consider using the American Legion as muscle to take over the banks in his inaugural address, but was fortunately talked out of that version of his inaugural address.

Lincoln clearly believed that his mission to save the union put him above such niceties as democracy - recall that he won the Republican nominating convention by having his delegates arrive early and then lock the doors. Efficacious, but clearly not a great respecter of the will of the people (even if such behavior was de rigeur in the American politics of the day). But clearly not a fascist - he had a quite explicit morality that limited his use of power.

And how were the Articles of Confederation a clear failure? It didn't fulfill the lust of some of the founders, clearly, but the US didn't fail under them - it was just a bit unruly, which in my book is a good thing.

The US Constitution is a negotiated document. Reading it right next to the Articles makes it clearly that there were at least two separate understandings of what it implied. One was a simply bureaucratic centralization of the US under the articles - you can see that by how it parallels and expands upon the original. The second was a federal (but not fascist) elected dictatorship, as Mexico was under for a century. A no-party state dominated by a federal elite. It would be even more explicit in our inherited order if Washington hadn't been heading towards his deathbed in his second-term, and hadn't so "magnanimously" turned down another term.

And how do we know this? By the nature of the amendments. They clearly were intended to bring the Constitution back in line with the original Articles, where ambiguity had been introduced. For example, the second amendment which clearly intends to guarantee the continuation of the military roles of the states, and the ninth and tenth which clearly imply the sovereignty of the states. Some people caught on to the trick, but not enough (obviously).

But the anti-federalists clearly missed the seriousness of the long-term implications of the presidential power outlined in the document. It "looked" enough like a rationalization of the rotating presidency of the Articles, but with the development of democratic processes that gave the president his own national constituency and the expansion of the bureaucracy, it was inevitable that it would lead to four-year dictatorships in function. Not to even mention the historical connotations of command-in-chief. I doubt that Hamilton didn't see that.

Isn't that how all important documents are structured? You put words in that can be read as a victory by all parties until the litigation begins, and everyone realizes that nothing was "settled," but simply put off? Let the judge (or history) invent his own document?

# posted by

RandomSequence : 2:28 PM

Oh, and Bart:

I don't accept that you're taking the "Federalist" position. Your postings have a long history, showing an agenda that may be derived from Federalist positions, but is more modern, in a pejorative sense. You're as Federalist as you are libertarian (another of your claims, even if they are mutually exclusive). Both are simply disingenuous.

But hey, you'll keep at the grindstone, month after month after month. And most likely your agenda will succeed, whether under a Republican or a Democratic administration, because it has become accepted wisdom (at least it's inevitability) by a large portion of the population. In practice we will see travel restrictions, widespread surveillance, blackmailing of opposition politicians and continual warfare. C'est la vie! Back to work for me! And not just in the US, but in the EU as well. Thanks for helping bring China to the US, even if you claim that your goal is the opposite: let me credit you with intelligence at least to privately recognize the real effects of your political movement.

# posted by

RandomSequence : 2:38 PM

SL is essentially right. Despite some of the above accurate observations to the effect that the Constitution attempts to restrain the President's power, the Bush Administration's excesses have shown that the President is able under some circumstances to ignore the popular will and the otherwise clear intentions of Congress as embodied in federal legislation.

# posted by

Unknown : 7:43 PM

randomsequence said...

Bart, Are you seriously arguing that Lincoln and FDR were not authoritarians? Seriously?

Towards rebels and Japanese Americans, yes. Otherwise, not particularly.

FDR was a typical social democrat and more statist than I like, but not quite an authoritarian.

My argument is that you're so attracted to them because you are a fascist. But they clearly were not "fascists", but other breeds.

OK, I can buy that I am about as much a "fascist" as Lincoln and FDR in the prosecution of wars.

However, as I posted earlier, FDR's bureaucratic state is unconstitutional, so don't saddle me with that leftist power grab.

And how were the Articles of Confederation a clear failure? It didn't fulfill the lust of some of the founders, clearly, but the US didn't fail under them - it was just a bit unruly, which in my book is a good thing.

I like my government limited, but functional. You appear to like your government nearly neutered. We will have to agree to disagree.

# posted by

Bart DePalma : 1:41 PM

If that isn't telling the gummint what types of weapons to use, I don't know.

then you don't know. I don't agree with Bart's entire interpretation of these issues, but you're about as wrong as you can be about this one. It doesn't mention "use" at all. It is solely a spending provision -- and, incidentally, is directed at the SecDef, not the military.

# posted by

David Nieporent : 12:19 AM