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] (23) comments

Constitutional Bets

Mark Graber

Suppose two tribes who have some reason to cooperate but whose members do not like each other very much ratify a constitution that grants the northern half of their territory to Tribe A and the southern part to Tribe B. Each party is rather happy with the bargain. Each believes that, in the next hundred years, climate changes are likely to enhance the value of their land and make the other tribe’s land nearly uninhabitable. As a result of this constitutional bargain, members of both tribes are able to form an army that provides for the common defense and make mutually beneficial trade agreements with other nations.

After 100 years of no apparent changes, evidence conclusively indicates that Tribe A has won the constitutional bet. The soil on the northern half of the continent is becoming increasingly fertile, while the soil of the southern half of the continent (for natural reasons) is slowly killing the members of Tribe B. Conventional constitutional theory is likely to tell us little more than that members of Tribe B have no constitutional right to move south and, having lost their constitutional bet, they have a constitutional obligation to remain in the constitutional union. This seems to be to be a rather cribbed view of constitutional theory. Leaving behind questions of constitutional interpretation for a second, any sound constitutional analysis would begin by recognizing that the present generation of Tribe B is not likely to continue cooperating with the present generation of Tribe A under these circumstances. Rather, a fundamental principle of an empirically realistic constitutional theory ought to be that constitutional bargains survive only when interpreted, however creatively, in ways that create opportunities for mutually beneficial cooperation between members of the two tribes. Of course, members of Tribe A will have the luxury of knowing, as civil war wracks their country, that Tribe B was the party responsible for abandoning the constitution. Thus, however, is unlikely to reduce their casualities. One crucial constitutional point is that constitutional bets made by one generation are unlikely to be peacefully enforceable against the next. A second constitutional point may be that constitutional bets made by one generation should not be enforceable against the next when the result is a sharp imbalance in the benefits of constitutional cooperation, that constitutions are best interpreted in ways that enable all parties, by their subjective lights, to believe that they are better off continuing to cooperate than going at matters alone (or engaging in civil war).


Posted 10:01 PM by Mark Graber [link] (11) comments

Rahm Emanuel on the Democrats' best strategy

Sandy Levinson

Today's Washington Post column by David Ignatius is based on an interview with Rahn Emanuel. It includes the following:

With House Speaker Nancy Pelosi, Emanuel plans to use Bush's Iraq speech to pose what amounts to a vote of "no confidence" in Bush's leadership -- framing the new strategy as a congressional motion and voting it up or down. Emanuel is certain that Bush's strategy will be voted down and that a sizable number of Republicans will join the Democrats in rejecting the military escalation. Rather than try to restrict funds for the troops (which he sees as a political blunder that would delight Republicans), Emanuel instead favors a proposal by Rep. John Murtha to set strict standards for readiness -- which would make it hard to finance the troop surge in Iraq without beefing up the military as a whole. The idea is to position the Democrats as friends of the military, even as they denounce Bush's Iraq policy....

The secret for the Democrats, says Emanuel, is to remain the party of reform and change. The country is angry, and it will only get more so as the problems in Iraq deepen. Don't look to Emanuel's Democrats for solutions on Iraq. It's Bush's war, and as it splinters the structure of GOP power, the Democrats are waiting to pick up the pieces.
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Query: On what precise basis will Mitch McConnell justify a filibuster against a non-binding resolution that is the equivalent of a vote of no confidence? And what will be the political consequences of what I think will be an unprecedented passage of such a vote? Obviously, in a parliamentary system, it would mean resignation and replacement.
Posted 11:43 AM by Sandy Levinson [link] (14) comments

Why Bush Is Our Most Catastrophic President

Sandy Levinson

I have been taken to task for describing George W. Bush as the most catastrophic president in our history. Part of the critique is that worse catastrophes have happened in other presidential administrations, including, say, the capture and burning of Washington by the British in the War of 1812 or the decimation of the Union army in the early days of the Civil War. One might include Pearl Harbor in this list. Mention has been made of the fact that the 3,000 American dead in Iraq, though of incalculable loss to the families of the deceased, is a quite small number compared to the losses in earlier battles and wars. And so on. So why do I remain convinced that he is indeed our most catastrophic president?

Part of the answer lies simply in the expanded domain for decisionmaking by modern presidents. Michael Lind, in a Washington Post symposium on who have been our worst presidents, educated me as to the truly dreadful nature of the Madison presidency. The War of 1812 was awful, perhaps even catastrophic, in every way. Had the British in fact reconquered the US (and not simply a part of northern Maine, which they gave back), then Madison would obviously have been the hands-down winner of worst and most catastrophic president. But, of course, the US pulled through, albeit ingloriously. So the consequences of Madison's incompetence were relatively minor. And there just wasn't much else that Madison, or any President, could do, for good or for ill. He signed the bill establishing the Second Bank and he vetoed an internal improvements bill. The very fact that most Americans know nothing at all about Madison's presidency suggests that, at the end of the day, it was simply of little significance, one way or the other. And that's true of most 19th century presidencies, because the national government just didn't do much. And if one castigates some of the presidents for their collaboration with slavery, then one can respond that they were simply following the terms of the initial Constitution, a convenant with Death and an agreement with Hell, though some were more eager to live up to that covenant and agreement than others. But no US president comes through with flying colors, including Lincoln, who emphasized in his First Inaugural that he had desire to challenge slavery where it already existed and, indeed, would support an amendment guaranteeing the legal integrity of slavery in perpetuity.


Yes, the losses at Bull Run and elsewhere were catastrophic, but I'm not sure that one can properly blame them on Abraham Lincoln, unless one wants to address the question of whether he should have adopted James Buchanan's policy of declaring secession illegal but, nonetheless, non-prevetable by the national government. We've talked about that earlier, and I actually think there's something to be said for Buchanan's argument. As I've argued earlier, I think main justification for Lincoln's decision to join in going to war--it takes two to tango, after all--is along "humanitarian intervention" grounds emphasizing the necessity of eliminating chattel slavery, but this justification, as I've also argued earlier, calls into question the weakness of the ensuing "reconstruction" that utterly failed to achieve genuine "regime change" and permanently harmed American politics by giving the South even more political power in the long run than it had had prior to the War. So maybe Andrew Johnson is our most "catastrophic President" for his failure to crack down early and hard on the defeated Southern entities.

Incidentally, perhaps James Polk deserves mention, since it was his decision to initiate the Mexican-American War. Still, it's hard to argue that gaining the American Southwest, including California, has disserved the country (in the way that a weak Reconstruction clearly disserved the country, however understandable it is politically).

Perhaps it should be Woodrow Wilson, the most racist president in our history (relative to the cultural possibilities of the time, since, after all Teddy Roosevelt had had Booker Washington to the White House as a guest) and the implementer of America's debatable participation in World War I and then the various catastrophies linked with Versailles afterward. He was also a stunningly obdurate, self-righteous political leader, in part because of his assurance that he had been called by God to exercise his particular leadership. (Sound familiar?)

Harding scarcely counts. Corruption does not equal catastrophe. Hoover was the victim of structural forces as much as his own ineptitude. Indeed, had he accepted FDR's entreaties in 1920 to run for the presidency on the Democratic ticket (and been elected), I suspect we would regard him as a first-rate president, since he was a man of enormous ability (unlike you know who).

Some people might describe FDR as a catastrophe because of the New Deal. I don't. If anyone wants to take up the argument, feel free.

So now we're up to Truman, Ike and JFK. All were far from perfect, but catastrophic seems excessive, even for their detractors. JFK comes closest, because of his monumental ineptitude at the Vienna conference with Khruschev, which persuaded the latter that he was a weakling. Thus the Cuban Missile Crisis, where JFK risked nuclear holocaust in part so that the Democratics could avoid decimation in the 1962 congressional elections. (There might have been other considerations, but no less that Robert McNamara downplayed the genuine threat to the US posed by the missiles in Cuba.)

LBJ is the most tragic president in our history. For me he was the greatest domestic president we ever had, including Lincoln and FDR. Then there is Vietnam, which was, I think, an utter catastrophe. But, as I've argued earlier, it was a "soluble" catastrophe in the specific sense that acceptance of American defeat, as Gerald Ford was ultimately willing to do, had relatively little international effect. (Domestic politics are another matter.)

No one could argue that Carter was "catastrophic," so let's move on to Reagan. Again we could have all sorts of political arguments about the Reagan presidency, but it is true that, for all of his throwing down certain gauntlets, he was not bellicose or prone to take unnecessary risks. In retrospect, one feels almost nostalgic for the maturity of leadership of George Schultz in the State Department.

George H.W. Bush or Clinton? Highly imperfect, yes, "catastrophic," no. So this brings us, obviously, to George W. Bush. He embarked on a war of choice that has not only torn this country apart, but threatens to destabilize the entire Middle East and provoke ethnic bloodbaths, not to mention, for what it is worth, instabilities in the supply of oil and the like. He has, as Mark Graber has noted, turned a blind eye to global warming. He has, as Tom Friedman has repeatedly noted, been totally indifferent to achieving any real "energy independence" by adopting a more intelligent energy policy. He has threatened our children and grandchildren with economic insecurity by having to pay for his combination of reckless tax cuts and an expanding welfare state (such as the drug bill with its enormous benefits to big drug companies). The list goes on. In any event, I challenge anyone on this list to specify why another of our 43 presidents can legitimately be called "more catastrophic" or "worse" in terms of long-term consequences for the US and the world than George W. Bush, who, because of our defective Constitution, has 740 days remaining in his term.
Posted 10:54 AM by Sandy Levinson [link] (108) comments

(Darryl) Levinson thesis revisited again, this time with application to Iraq

Sandy Levinson

I note with interest the following posting by John Podheretz, who I assume continues to be strongly Republican:

Want a little tough truth with your morning coffee? McCain can do this, and Rudy can do that, and Romney can do the other thing. But if tonight's speech doesn't herald the beginning of a serious turnaround in Iraq that is plain to see by spring of next year, the Risen Christ could be the Republican nominee in 2008 and He wouldn't be able to win against Al Sharpton.

Recall the Darryl (no relation) Levinson thesis and his emphasis on the priority of party over institutional identification. So the really terrible question is this: Is it really in the Democrats' institutional interest to save the country from what they believe is the catastrophe of Bush's escalation (especially if one believes, as I do, that one purpose of it is to inveigle Democrats into appearing responsible for "losing Iraq" should they have the temerity to stop it via a funding cutoff)? If Podheretz is correct, which I suspect he is, then isn't the Democrats' institutional interest the carrying out of a doomed-to-fail policy, which will have the consequences he predicts (i.e., not an Al Sharpton win, but, rather, a decisive victory for the Democratic nominee, whoever he or she turns out to be)? The implications for party-oriented Republicans are equally obvious. Not unless they have very strong (and, I believe, competely unmerited) faith in Bush's instincts as Commander-in-Chief do they have an interest in seeing this policy go ahead, but they may fear the consequences of White House retaliation should they become equally prominent with, say, Ted Kennedy as critics of the War. What is interesting, of course, is that two likely candidates, Chuck Hagel of Nebraska and Sam Brownback of Kansas, are indeed taking the lead, presumably because they perceive their only hope, in 2008, is a demonstrated record of standing up to the unpopular and incompetent President, even if he is one of their own.

One would like to think, of course, that decisions about Iraq are being made independent of party advantage, but, then, one would like to believe in Santa Claus. Bill Kristol torpedoed the Clinton health measures by stating that any collaboration in resolving the health insurance problem would in fact redound to Clinton and the Democrats, so that adamant opposition was the right strategy for Republicans. They opposed, and, of course, they took over Congress. So what should a Bill Kristol of the left be advising right now with regard to giving Bush the rope to hang himself as against standing up courageously in opposition to the escalation and asking John Kerry's question from 30 years ago, about what to tell the parents, wife, husband, child etc. of the last person to die for a dreadful mistake?
Posted 3:28 PM by Sandy Levinson [link] (28) comments

Bicycle Riding in January

Mark Graber

Monday and Tuesday were the first days in over a month that I wore gloves when taking my bicycle ride on the Rock Creek Trail outside of Washington, D.C. The daily temperature for the previous 30 days was above average for this time of year. On many days, I did not bother with a sweater. More than once, a t-shirt was sufficient.

I do a good deal of my academic thinking on my bicycle rides (which the comments below will no doubt suggest, probably explains a great deal). Often my mind wanders to Iraq. I was opposed to the original Iraqi invasion, suspecting that overthrowing Hussein was likely to be fairly easy but creating a stable polity (if not a stable democracy) next to impossible. On the other hand, the invasion was supported by the Washington Post, initially the New York Times, and some people whose judgment I think usually quite sound. They failed to persuade me (not that they needed to), but given their beliefs, the initial invasion seems best described as a mistake rather than incompetent. There is a revisionist school of thought, led by the Washington Post, which claims that Iraq could have been pacified had only President Bush adopted a more competent policy once the initial invasion succeeded. On my bicycle ride, I am inclined to think this mistaken. Destabilized Middle East countries, what little I know of comparative politics suggests, are next to impossible to put back together. That was my initial judgment of the Iraqi invasion and one that seems confirmed on a daily basis. For this reason, my suspicion is that President Bush’s present plan is no more incompetent than any other plan, all of which are as likely to succeed as any other effort to put Humpty Dumpty back together again. If we were to fire this bum as incompetent, the next bum, Democratic or Republican, in my pessimistic judgment, is likely to do no better. At least, I have yet to see any consensus among any experts I respect on a plan that is likely to result in a stable Iraq that is not a haven for Al-Quida.

Matters seem different on my bicycle ride when I think about how the winters in this area seem to grow milder by the year. A consensus does exist among experts that global warming is real and likely to have catastrophic consequences in the relatively near future unless something is done. Of course, dissenters exist on the details and a few on general themes. Still, if the best measure of incompetence is divergence from expert consensus, Bush administration environmental policies seem far more incompetent than Bush administration Iraqi policies. We have a looming environmental disaster, general agreement exists as to what must be done to prevent that disaster, and this administration does little more than censor scientific reports critical of industry.

As is the case for the initial Iraqi invasion, however, blame is hardly limited to the Bush administration. Global warming does not seem even to be on the agenda of the Democratic Congress. "An Inconvenient Truth" does well at the box office, but has hardly created a mass political movement for environmental reform. Higher gas prices bring out contrary voters, whether the cause is the Iraqi invasion or taxes intended to limit pollution. If as President Bush informed us after 9/11, the major American sacrifice during the war on terrorism would be to continue our normal consumer habits, this does not bode well for calls asking Americans to rethink behaviors responsible for pollution. My sense of the universe is that if 99 experts say an environmental disaster is coming and one legitimate expert says this may not be the case, the general public either believes the solo expert or at least concludes that the matter would benefit from more study. In this case, incompetent public policy is substantially rooted in a too apathetic general public.

My good friend and mentor Sandy Levinson would have us agonize over the possibility that an incompetent president has 740 days yet to reign. I worry more that the next President of the United States will be chosen by the same electorate that twice preferred a candidate who was widely known to be disinterested in the details of public policy. Impeaching Bush for incompetence is a bit like impeaching Clinton for philandering. What intelligent person thought they were voting for a master of policy or a devoted monogamist. "I may not know what I am doing," Bush informed the American people, "but I will stay the course." He has kept the promise on which he won the 2004 presidential election. Is there any reason to think that the Bush presidency has taught the American voter a lesson or is the likelihood greater that American voters will repeat their same mistakes in the future? Does American environmental policy teach us that we are unlikely to consistently elect more competent presidents unless we have a more competent public? 740 days left until a different kind of incompetent takes office.
Posted 2:00 PM by Mark Graber [link] (20) comments

Our adolescent President

Sandy Levinson

Today's New York Times includes the lead story by David Sanger on Bush's speech, which includes the following paragraph:

[Bush] put [the logic of his plan] far more bluntly when leaders of Congress visited the White House earlier on Wednesday. “I said to Maliki this has to work or you’re out,” the president told the Congressional leaders, according to two officials who were in the room. Pressed on why he thought this strategy would succeed where previous efforts had failed, Mr. Bush shot back: “Because it has to.”


Two comments: 1) What exactly does it mean to say "I said to Maliki this has to work our you're out." I thought that the US considered Iraq a "sovereign" state--recall the justification for handing over Saddam Hussein to the Shi'ite government. So how, precisely, can the US assure that Maliki is "out." Is the Iraqi government a wind-up toy after all, whose energy from the last winding-up is running down and thus in need of another American wind-up? 2) Even more to the point, does "Because it has to" count as an answer to the question? Isn't this exactly the response one would might expect from, say, a semi-delusional adolescent when asked why he believes that some particular act will enable him to attain a goal, say a date with the homecoming queen? Perhaps John Hinckley might have given that answer if a friend had asked why he thought shooting Ronald Reagan would be an effective way to Jodie Foster's heart. Yes, I know this is a cheap shot, but the point is deadly serious: We have a criminally incompetent President (alas, this is only a metaphor rather than an evocation of the "high crime and misdemeanor" standard requisite for impeachment) who is literally incapable to giving a cogent response to the most important question currently before the American people (and the world): I.e., why would any rational person believe that the new escalation will be successful? The only reason we take this egregious man seriously is because the Constitution makes it impossible to replace him with someone capable of carrying on an adult conversation. Lots of people are about to die because of the mistaken decision of the Framers not to make "maladministration" an impeachable offense and our supine belief that whatever the Framers decided serves as well (or "well enough") today.

Thanks to the Constitution, we have to endure 740 more days of George Bush as Commander-in-Chief.

Have a good day.
Posted 10:38 AM by Sandy Levinson [link] (49) comments

Go Big or Go Home

JB

If President Bush is convinced that leaving Iraq, even in stages, would be disastrous for American interests, he should stick to his plans. He should pay attention to popular sentiments only to the extent that lack of popular support limits what a commander-in-chief can do in wartime. Presidents are elected to act in the national interest as best they see it. Indeed, if Bush agreed to withdraw American forces because of popular opposition when he honestly believed that doing so would lead to terrible consequences for American interests, he would be betraying his oath of office.

The problem with last night's speech is that few people believe that Bush's proposed remedy of 20,000 additional troops will do any good. The limited nature of the remedy leads people to think that Bush is not entirely serious or that he is once again hiding something: that he is trying to punt the problem to his successor without admitting-- either to us or to himself-- that he has already lost the war.

Several commentators have suggested that the proposed surge is a last-ditch effort, a sort of Hail Mary pass. But it is a pretty strange sort of Hail Mary pass: Bush is on his own 10 yard line with seconds to play and he is throwing not a long bomb but a short toss to the sideline.

That is why (pardon the pun) people are so up in arms about what the President proposes to do. When Bush claims that we are at risk of seriously injuring American interests if we leave, fewer and fewer people believe him. They well know that withdrawal will harm our interests, but they have calculated the relative costs and benefits for themselves and decided that we should cut our losses. Bush's half measures-- given the paltry number of troops, they are not even half measures-- seem to confirm their assessments.

If Bush announced that a very significant escalation (and significant sacrifice to increase the army) was necessary-- say a doubling of our armed forces in Iraq, he would actually gain more support among the population, because more people would believe that their cost-benefit calculations were wrong and that we truly were at a crisis point. He would be signaling that losing this war would be every bit as serious for America as he claims it is, and that we had to give the battle everything we have as a nation. After all, if America's most vital interests are genuinely threatened, we are a country of 300 million people with vast resources; there is far more we could do, even if it would take many months to build up our forces. If this war cannot be lost, then we should be prepared to surrender far more blood and treasure to ensure victory.

Bush has become the victim of his previous incompetence and his history of inflated rhetoric. He has been so wrong so often before-- about weapons of mass destruction, about how to prepare for the war, about how to prepare for the occupation, about the costs of the war and the occupation, about the progress of events-- that his claims today are far less credible. He has repeatedly misstated reality-- if not lied-- and engaged in wishful thinking over and over again where this war is concerned, so why should people start believing his assessments and his predictions now? He has repeatedly stressed that if we do not win in Iraq, terrible things will happen to us. But he has not been willing to ask the country to sacrifice in proportion to the threat he says we face. He has been sending a mixed message, particularly in the remedy he proposed last night. All this adds to the suspicion that instead of resoluteness we are seeing more duplicity and more bad judgment.

Like many Americans, I believe that it is time to cut our losses, and stage a gradual withdrawal of forces. This war was a mistake from its inception, and the costs (and dangers) to the nation have only increased because of the Administration's incompetence in executing its plans. I recognize that I may be wrong in my assessments of the relative costs and benefits of ending the war. Perhaps President Bush, with access to far greater information, correctly sees something that the rest of us do not see about what will happen if we leave. If we are truly at risk of a terrible disaster, then Bush should not back down, no matter how much the public disagrees with him. But then he should act as if we truly faced such a disaster. He has yet to do so, four years into this war, and *that* is the great failure of his leadership.

Posted 6:50 AM by JB [link] (21) comments

The Commander-in-Chief Defies His Generals

Sandy Levinson

One should read this mornings story in today's Washington Post by Michael Abramowitz, Robin Wright, and Thomas Ricks, tellingly titled "With Iraq Speech, Bush to Pull Away From His Generals"? No doubt the President continues to rely on his "gut" that things just have to get better, since otherwise it would call his what I suspect is his self-believed theory of divine election into doubt (or suggest, even worse, that God is actually on the side of our enemies).

I'm reading a manuscript right now of a forthcoming book on the Nixon-Agnew relationship, and I couldn't help noticing the following statement by Nixon with regard to his otherwise inexplicable choice: "There is a mysticism about men. . . . You lok a man in the eye and you know he's got it--brains. This guy has got it. If he doesn't, Nixon has made a bum choice." Indeed. Recall Bush's habit of looking into "the soul" of Putin and others and deciding on that basis what US policy should be.

There are serious people, like Senator McCain, who support a significant escalation of the war by sending in, say, another 100,000 troops. There are even more serious people who believe that it is time to begin the inevitable withdrawal. I truly wonder whether any truly serious person believes that a 20,000-person escalatory surge makes any sense. Or perhaps the real answer is that this is Rovian bait being thrown to the Democrats, in the hope that they will try to prevent it and therefore take the "blame" for the inevitably inglorious withdrawal.

Incidentally, I offer the following sidenote about General Petraeus, by almost all accounts an enormously accomplished man: A student of mine at the UT Law School, who had had combat experience in both Afghanistan and Iraq, referred to him as "General Betrayus" because of what was thought to be his inordinate interest in good publicity (and presumed self-promotion) rather than concern for his troops. I have no idea whether this is fair, but I do know that this is what my sober and thoughtful student told me.

In any event, things to consider with regard to the fact that George W. Bush will continue to be Commander-in-Chief for another 741 days, thanks to our unfortunate Constitution.
Posted 2:48 PM by Sandy Levinson [link] (29) comments

Retronyms and a Theory of Default Evolution

Ian Ayres

There was an interesting Safire Language column on retronyms, which is:

"a word or phrase created because an existing term that was once used alone
needs to be distinguished from a term referring to a new development."

Examples of retronyms include: real butter, tap water, snail mail. You can find a cool list of examples here. The concept got me to thinking about how defaults evolve over time.
Many of these retronyms start as unmodified nouns (whole milk was just milk) which didn't need a modifier because there was no alternative. When the new alternative comes into existence, we need a linguistic way of distinguishing between the two things. When the market share of the new thing is small, the default meaning of the unmodified thing almost certainly remains the same. When margarine was a new fangled invention, everyone knew that butter still meant real butter. But as the market share of the new thing grows at some point people will want to make sure that the person wants the old and not the new (I want to buy a convection oven).

And interesting empirical question is how high does the market share of the new have to be before people resort to retronyms. [There might even be a function that describes how the marketshare of the retronym vs unmodified designation varies with the marketshare of the new item.]

Most of the examples of retronyms are places where the default meaning of the unmodified word has not flipped to the new. We now have to specify "regular" or "decaf" coffee. As I look through the classic retronym list, we're often caught in a world without a default meaning for the unmodified noun. This is the kind of linguistic inefficiency that the Soviets would despise.

It would also be interesting to see if the market share of the new item because sufficiently large, does the default meaning of the unmodified word change. Will there come a time when "you've got mail" means email -- oops I guess it already does in some contexts.

Retronyms might teach us something descriptive about the evolution of legal defaults. Legal default rules are rules that govern if the parties fail to contract around them. So it strikes me that a retronym is a reiteration of an old default in situations where the speaker/contractual drafter is uncertain whether the default is still valid. As with retronyms, when two different sets of terms have substantial marketshares of use, will we find a failure to embrace either as a default. Will we see flipping of the default at the same tipping point.
Posted 8:46 PM by Ian Ayres [link] (4) comments

Democracy's Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions

Guest Blogger

Josh Chafetz

Thank you very much to Professor Balkin for lending me some space to plug my new book, Democracy's Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions, just out from Yale University Press.

In a nutshell, legislative privilege consists of those special rights enjoyed by individual Members or individual Houses of the legislature. In the book, I trace the evolution of five key strands of privilege through their development in British and American law. Those strands are, (1) jurisdictional conflicts between legislative houses and the courts (what the British call the clash between lex parliamenti and lex terrae and part of what the Americans call the political questions doctrine), (2) freedom of speech for legislators, (3) freedom from civil arrest for legislators, (4) the resolution of contested legislative elections, and (5) the disciplinary powers of the houses. I argue that a close focus on privilege provides a crucial window on the development of democratic norms and institutions in Anglo-American history, from the House of Commons' early struggles for influence, to the decisive rise of parliamentary sovereignty in the late-seventeenth century, to the rise of popular sovereignty in America.

While working on this project, I knew that I would learn some fascinating things about British and American legislative history, but I figured most of the relevance would be just that--historical. It had, after all, been a long time since Charles I and his troops stormed into the House of Commons, seeking to arrest five Members (the House refused to turn the Members over and passed a resolution declaring the King's action "a high breach of the Rights and Privileges of Parliament"--the public outcry against the King was so great that he was forced immediately to remove his court from London to Oxford, and thus began the Civil War). I also knew that legislative privilege was an important background issue even in the contemporary workings of Congress and Parliament.

But I never expected that my book would turn out to be timely. Somehow, however, it has. First, we had the Jefferson search, and now we have ethics reform, both of which raise significant questions of congressional privilege. I have argued elsewhere that the Jefferson search was unconstitutional and that the main focus of ethics reform should be on congressional self-discipline, and I won't rehash those arguments here. I will, however, add a word about a less obvious way in which legislative privilege is a timely topic. As Charles I reminded us, legislative privilege has served to guard the independence and power of Anglo-American legislatures for centuries. In a time in which many of us are concerned about executive overreach, legislative privilege takes on increasing importance as a way of protecting and empowering the most representative branch. Thus ends the plug for Democracy's Privileged Few--I hope you'll take a look at it. And thank you, again, to Professor Balkin for lending me his soapbox!
Posted 6:50 PM by Guest Blogger [link] (7) comments

Senator Kennedy's Bill to Prohibit Escalation of U.S. Forces in the Iraq Military Conflict

Marty Lederman

Senator Kennedy is today introducing this legislation, the operative provision of which reads:

Prohibition.--Notwithstanding any other provision of law, no Federal funds may be obligated or expended by the United States government to increase the number of United States forces in Iraq above the number for such forces which existed as of January 9, 2007, without a specific authorization from Congress by law for such an increase.

Posted 10:13 AM by Marty Lederman [link] (27) comments

In (Electoral) Dreams Begin Responsibilities

Marty Lederman

Matt Yglesias and Ann Althouse "vlog" about the irony of the current legislative murk: Although the November elections were a referendum on the Iraq War, and although 45 percent of the electorate believes that "of all the problems facing the country today," the Iraq war is the one Congress should "concentrate on first" -- the economy and jobs collectively is second with seven percent support -- the Democratic majorities actually chosen in that referendum are now unwilling (indeed, some among them who should know better profess to be unable!) to do anything about that war other than to cajole and plead with the President and to hope that the Republican minority convinces the President to change course. (In fairness, there are many Democrats, such as Senator Kennedy (introducing legislation this morning) who are ready to step to the plate. But there's apparently a great deal of hand-wringing in certain parts of the caucus.)

As Yglesias notes, perhaps the best possible political and policy outcome for the Democrats would, indeed, be for Bush to de-escalate the war at the behest of Republicans, so that once the war is ended the Republicans can't thereafter carp, Vietnam-revisionism-like, that "We could have actually won the war if only those Democrats hadn't tied our hands!"

Fair enough.

But even if Yglesias is correct about the best of all possible worlds, and even if some Republicans begin pleading with Bush to reverse course, there's no reason to think this President would be at all inclined to listen, let alone to acknowledge the error of his ways. And if that's so, then, as Matt says, "there's something ghoulish about agreeing to appropriate money to finance a military occupation that you think should be ended and that you think is futile."

No, of course that doesn't mean that Congress should propse a bill cutting off all appropriations for the conflict immediately. The commonly-heard anxiety about Dems being accused of "abandoning our troops in Iraq" is grossly overstated: No one is remotely suggesting any statutory proposals that would strip troops on the ground of whatever is necessary for their safety and protection.

But Congress could simply vote for a law requiring withdrawals or redeployments on a particular timetable. (In 1973, for instance, Congress enacted a law effectively requiring withdrawal from Cambodia and Vietnam by a date certain (August 15, 1973). See Pub. L. No. 93-52, 87 Stat. 134 ("Notwithstanding any other provision of law, on or after August 15, 1973, no funds herein or heretofore appropriated may be obligated or expended to finance directly or indirectly combat activities by United States military forces in or over or from off the shores of North Vietnam, South Vietnam, Laos or Cambodia.") President Nixon didn't simply "abandon" those troops without authorization or funding -- he complied with the deadline, after having vetoed a bill requiring withdrawal six weeks earlier.)

Or, as at least one member of Congress will propose this morning, Congress could vote for a bill refusing appropriations for increases in troop levels in Iraq.

Will Bush veto such a bill? Perhaps (depending on what else is in it). Will he ignore it if it is enacted? Well, when it comes to respect for statutory law, let's just say that Bush is no Richard Nixon. Could the courts enforce such a law if Bush refuses to enforce it by spending funds that are not appropriated? Yglesias and Althouse seem to assume that the Supreme Court would not intervene. I'm not so sure -- in any event, the Court surely could intervene.

But even if it would be difficult to enforce such a law does not mean it shouldn't be enacted. A situation in which the President must openly violate the law, and spend unappropriated funds, in order send more troops to Iraq, wouldn't be such a bad thing as opposed to the alternative, at least in terms of political accountability. And it certainly is no justification for Congress to abandon its constitutional role.

Indeed, it's important for Congress to step up to the plate here not only because the practical stakes are so high, but also precisely because the President is so dismissive of ordinary checks and balances. It's hard to improve here on Josh Marshall's comments this morning:

The way this is "supposed" to work is that when the president takes a dramatic new direction like this he consults with Congress. That way, some relative range of agreement can be worked out through consultation. National unity is great. Or at least that's the theory.

But here we have a case where the president's party has just been thrown out of power in Congress largely, though not exclusively, because the public is fed up with the president's lies and failures abroad. (Indeed, at this point, what else does the Republican party stand for but corruption at home and failure abroad? Small government? Please.) The public now believes the war was a mistake. Decisive numbers believe we should start the process of leaving Iraq. And the public is overwhelmingly against sending more troops to the country. The country's foreign policy establishment (much derided, yes, but look at the results) is also overwhelmingly against escalation.

And yet, with all this, the president has ignored the Congress, not consulted the 110th Congress in any real way, has ignored the now longstanding views of the majority of the country's citizens and wants to plow ahead with an expansion of his own failed and overwhelmingly repudiated policy. The need for Congress to assert itself in such a case transcends the particulars of Iraq policy. It's important to confirm the democratic character of the state itself. The president is not a king. He is not a Stuart. And one more Hail Mary pass for George W. Bush's legacy just isn't a good enough reason for losing more American lives, treasure and prestige.

Posted 4:59 AM by Marty Lederman [link] (24) comments

Let's Play "Junior Constitutional Lawyer"!

Marty Lederman

From yesterday's White House press briefing, my new favorite euphemism for "We can't be troubled by mere statutes":

Q: Do the Democrats or any of the opponents have the . . . authority to stop anything that the President is going to present? In other words, is he going to need to ask Congress to approve something?

MR. SNOW: Well, ultimately, anything you do has budgetary implications. I think there was a question earlier today, are we seeking resolutions, and that sort of thing -- and I want to wave you off of that. What you do have, though, is basically budget is policy. So Congress is going to be engaged in the appropriations and authorization process and, you know, through those, they're going to be debating a lot of things. And so that's sort of par for the course.

Q: But in terms of anything out of the Pentagon -- the troops, deployment, any of the programs we initiate -- the President, alone, has the authority to --

MR. SNOW: You know what, I don't want to play junior constitutional lawyer on this, so let's wait until we see what happens, if you have specific questions about constitutional authority. But, you know, Congress has the power of the purse. The President has the ability to exercise his own authority if he thinks Congress has voted the wrong way.

Bending over backwards to be fair, I suppose that in referring to "[the President's] own authority," Snow could simply have been referring to the veto power. In the context of the question (whether the President has the "authority" to deploy additional troops without congressional approval), of course, this would be a most generous assumption -- but if he were playing "junior constitutional lawyer," perhaps Snow's studied ambiguity would get him partial credit.
Posted 4:28 AM by Marty Lederman [link] (14) comments

The Constitution, second-class citizenship, and the 2008 election

Sandy Levinson

Loyal readers know of some of my various discontents with the Constitution. I have, for obvious reasons, dwelt on what I think are the most important deficiencies, including our feeling stuck with a manifestly incompetent and dangerous president for another 742 days. But let me change that broken record and point to another problematic feature of the Constitution that may turn out to have significant consequences for the upcoming election: This is the limitation of eligitibility for the presidency to "natural born" citizens. Harvard's Randall Kennedy and Robert Post, now at Yale, each selected this clause as the "stupidest" provision of the Constitution in 1998 (citations on request). Among other things, it stands for the proposition that we differentiate between "first-class" citizens, i.e., those eligible to serve as President, and "second-class" ones. In my book, I discuss other "second-class citizenship" clauses, including age limitations service in the House, Senate, and White House, and, more importantly, practically speaking, durational requirements that one be a citizen for seven and nine years before being eligible to serve in the House or Senate, respectively. This means, obviously, that a newly naturalized citizen is estopped from running for national office for quite a few years.

A truly liberal society ought not tolerate such distinctions except where absolutely necessary, as is the case, e.g., with regard to having some floor with regard to voting (no one advocates that six-year-olds be entitled to vote or serve in public office). Most repugnant is the natural-born citizenship clause. This makes such luminaries as Henry Kissinger, Madeline Albright, Ted Koppel, Jerry Springer, and millions of others ineligible to aspire to the White House. It's simply not true that "every boy and girl in America can dream of growing up to be President" if he or she was born abroad to non-American parents. I would obviously be more supportive of some of these examples than others, but the point is that we should be able to choose ourselves instead of having the choice made by the 1787 Framers. There may (or may not) have been a good reason for the restrictions in 1787; there is no good reason to maintain them today.

That's the abstract, normative argument. Getting down to practicalities, there is Arnold Schwarzenegger. He, too, is not a favorite of mine, but it seems obvious that he would be a serious candidate for the White House were it not for our undemocratic Constitution. By any account, he has proven a competent and provocative governor of our nation's largest state. He is, I gather, about to propose sweeping changes in the funding of medical care in California in the face of the inability by the national government to confront such challenges. I don't know if he could get the Republican nomination--he may be much too liberal, socially--but he is ideally poised to run as an independent candidate appealing to frustrated Repubicans who despair about the capture of their party by the religious right and those Democrats who believe that the Party leaders have drifted too far to the left (a view that I certainly don't share, but that's irrelevant). Utah Sen. Orrin Hatch several years ago proposed a constitutional amendment repealing the constitutional bar, but it didn't go anywhere, not least because brain-dead Democrats didn't pick it up and insist on its passage. Why, besides the simple fact that it would have been the little-d democratic thing to do, should Democrats have rallied around Hatch? Becuase Michigan Gov. Jennifer Granholm, born in Canada before she came to the US at the age of 3, would be an attractive possibility as VP on the Democratic ticket in 2008 (especially if Hillary Clinton is not the candidate). Both, of course, are ruled out, to the detriment of our polity and our claim to treat all citizens equally.
Posted 5:42 PM by Sandy Levinson [link] (17) comments

Kinkopf on Congress's War Powers

Marty Lederman

In my earlier posts, I was remiss in neglecting to link to this very fine and helpful analysis written by my friend and former OLC colleague Neil Kinkopf on Congress's power to enact a law to restrict a troop escalation, which Neil posted on Friday but which I only just now discovered. The wish-I-woulda-said-that title of Neil's post: "Congress as Surge Protector."
Posted 5:21 PM by Marty Lederman [link] (8) comments

Redesigning the Presidency

JB

Many people are now worried that George W. Bush is planning a useless surge in Iraq (useless because too little and too late) and that there seems to be very little we can do about it because Bush will never have to face election again. Sandy sees this as an example of our dysfunctional Constitution, while Marty is currently engaged in a very interesting analysis of whether Congress can limit appropriations or the use of troops.

But stepping back for a moment, it seems clear enough that one reason we are in this mess is that America lacks a vote of no confidence to discipline presidents who are in deep denial or are simply incompetent. Either or both of these descriptions may apply to the current occupant of the White House.

Because we lack a vote of no confidence, there are only a few available options. We can limit appropriations or attempt to limit the President's war making operations. But a vote of no confidence, which might seem to be a more drastic remedy, is actually more fine tuned and appropriate in these circumstances. Congress might be much more willing to vote Bush out of office than be seen as limiting money for our troops. Similarly, if Congress decides to limit the President's war making abilities, and this is held constitutional, then it sets a precedent that could hamper future chief executives. On the other hand, a vote of no confidence against George W. Bush-- if the Constitution permitted it-- would have no precedental effect with respect to warmaking powers. It would simply be an exercise of a different Congressional power. It would be a potential threat that Congress could offer to discipline future chief executives who got out of line.

Max Weber famously warned that democratic parliaments had a tendency to move toward a version of Caesarism featuring charismatic leaders who exercise increasingly dictatorial powers. But Weber's warning was premised on the notion that one could not easily get rid of the Caesar once he was put in power by general public acclaim. From this perspective, the real problem in the Weimar Constitution, for example, was not the office of the Chancellor, but the powerful office of the Presidency, occupied by Hindenberg.

Suppose that the United States moved to a dual system, with a ceremonial head of state (call him the President of the Republic) with no powers but the power to call for new elections upon motion of Congress, and a head of government, who exercised all of the executive functions of our current Presidency. Under this plan, we could head off many of the Caesarist impulses that Weber identified.

If Prime Minister Bush proved incompetent or unable to face reality, Congress could stage a vote of no confidence. The President of the Republic would not be able to bestow or delegate any powers to the out-of-control prime minister. Although Prime Ministers could exercise emergency power as U.S. Presidents currently do, would-be Caesars could usually be nipped in the bud by threats from Congress. In this scenario, the 2006 election would have sent a much clearer signal to Bush to clean up his act, because otherwise, under this scenario, the newly elected Democratic Congress might well depose him and call for new elections.

Such a change, it goes without saying, would no doubt require a constitutional amendment. And it raises some very interesting possibilities, which do not entirely commend the proposal. For example, suppose we had such a system in 1863. Would Congress have kicked Abraham Lincoln out of office when things were not going well for the Union Army?
Posted 2:09 PM by JB [link] (15) comments

The US respects Iraq sovereignty

Sandy Levinson

A remarkable article by John Burns and others in the Sunday NYTimes itells the tale of American capituation to a decision by the so-called Iraqi government (I say so-called because there is no evidence whatsoever that the "government" is capable of governing anything or anybody outside the Green Zone, and even the latter is open to question) that US authorities knew to be a recipe for disaster. Relevant parts of the article are as follows:

.... The time as the helicopter took off was 5:05 a.m., and Mr. Hussein had 65 minutes to live. But as he flew over Baghdad’s darkened suburbs, he can have known little of the last-minute battle waged between top Iraqi and American officials — and among the Americans themselves — over whether the execution, fraught with legal ambiguities and Islamic religious sensitivities, should go ahead.

American opposition to executing him in haste centered partly on the fact that the Id al-Adha religious holiday, marking the end of the annual Muslim pilgrimage to Mecca, began for Sunnis at sunrise on Saturday.....

The taunts Mr. Hussein endured from Shiite guards as he stood with the noose around his neck have made headlines around the world, and stirred angry protests among his fellow Iraqi Sunnis. But the story of how American commanders and diplomats fought to halt the execution until midnight on Friday, only six hours before Mr. Hussein was hanged, is only now coming into focus, as Iraqi and American officials, in the glare of international outrage over the hanging, compete with their versions of what happened.

It is a story of the Iraqi prime minister, Nuri Kamal al-Maliki, trying to coerce second-tier American military and diplomatic officials into handing over Mr. Hussein, first on Thursday night, then again on Friday. The American push back was complicated by the absences of Ambassador Zalmay Khalilzad and the top American military commander, Gen. George W. Casey Jr., who were both out of Iraq on leave. The American message throughout was that rushing Mr. Hussein to the gallows could rebound disastrously, as it did....

The hanging spread wide dismay among the Americans. Aides said American commanders were deeply upset by the way they were forced to hand Mr. Hussein over, a sequence commanders saw as motivated less by a concern for justice than for revenge. In the days following the hanging, recriminations flowed between the military command and the United States Embassy, accused by some officers of abandoning American interests at midnight Friday in favor of placating Mr. Maliki and hard-line Shiites....

When the tribunal’s appeals bench announced that it had upheld the death sentences on Dec. 26, three weeks into the appeal, even prosecutors were stunned. Defense lawyers said Mr. Hussein was being railroaded under pressure from Mr. Maliki, who told a BBC interviewer shortly after the Dujail verdict that he expected the ousted ruler to be hanged before year’s end.
The suspicion that the judges had submitted to government pressure was shared by some of Americans working with the tribunal, who had stifled their growing disillusionment with the government’s interference for months. Among a host of other complaints, the Americans’ frustrations focused on the government’s dismissal of two judges seen as too indulgent with Mr. Hussein, and its failure to investigate seriously when three defense lawyers were killed. The appeals court’s apparent eagerness to fast-forward Mr. Hussein to the gallows — and the scenes at the execution itself — was, for some of the Americans, the last straw....

At 10:30 p.m., Ambassador Khalilzad made a last-ditch call to Mr. Maliki asking him not to proceed with the hanging. When the Iraqi leader remained adamant, an American official said, the ambassador made a second call to Washington conveying “the determination of the Iraqi prime minister to go forward,” and his conclusion that there was nothing more, consistent with respect for Iraqi sovereignty, that the United States could do.
Senior Bush administration officials in Washington said that Mr. Khalilzad’s principal contact in Washington was Secretary of State Condoleeza Rice, and that she gave the green light for Mr. Hussein to be turned over, despite the reservations of the military commanders in Baghdad. One official said that Ms. Rice was supported in that view by Stephen J. Hadley, Mr. Bush’s national security adviser.

“It literally came down to the Iraqis interpreting their law, and our looking at their law and interpreting it differently,” the official said. “Finally, it was decided we are not the court of last appeal for Iraqi law here. The president of their country says it meets their procedures. We are not going to be their legal nannies.”

So what does one make of this sordid story? One could tell the story as one involving legal interpretation, so that the key statement is the last quote of an unnamed "official." But is that the right framework? Given the extreme likelihood that executing Hussein under these specific circumstances would produce an adverse reaction by the Sunnis, should the US have acquiesced as a political matter? to be sure, we could have insisted that all legal i's and t's were dotted and crossed, which they most certainly were not in the haste to execute Hussein. The "interpretations" offered by the Iraqi "government" with regard to the specifics of carrying out the execution have little more legal integrity that the "findings" of the Guantanamo commissions as to who is and is not an "illegal noncombatant."

One might be forgiven for failing to predict the presence in the execution chamber of a modern cellphone with the photo option, except by this time one cannot really be surprised, either, that this happened.

Does the supine response of Secretary Rice indicate that we are indeed throwing our power behind the Shi'ite suppression of the Sunnis, whatever the resulting carnage? That is, I think, a disastrous decision, but at least it would represent conscious policy. If, however, it is not such an announcement, then is the submission to Maliki simply further evidence of the rank incompetence at every level of this Administration? And is it not a reason for condemning our Constitution that we apparently have no alternative to accepting their continuation in office for another 743 days?
Posted 11:49 PM by Sandy Levinson [link] (25) comments

Note to Senator Biden: The President is Not "The Decider"

Marty Lederman

I have argued in this space that because the Democrats appear now to have come out firmly against an escalation of troops in Iraq, and in favor of a deescalation of the conflict, they ought to pass a bill compelling the President to abide by such decisions.

Unfortunately, on Meet the Press this morning, Senator Biden denied that the Congress has such a constitutional power:

SEN. BIDEN: You can’t do it. . . . You can't go in and, like a tinker toy, and play around and say, "You can’t spend the money on this piece and this piece and . . . [H]e’ll be able to keep those troops there forever constitutionally if he wants to.

MR. RUSSERT: Why not have legislation then that would cap the number of troops in Iraq?

SEN. BIDEN: Because it's very difficult to—it’s constitutionally questionable whether or not you can do that. I think it is unconstitutional to say, "We’re going to tell you you can go, but we’re going to micromanage the war." When we wrote the Constitution, the intention was to give the commander in chief the authority how to use the forces, when you authorize them, to be able to use the forces.

Biden thus concluded that the most he can do is to draft "a resolution of disapproval that is just hortatory."

Even if there were a prohibition in the Constitution against so-called congressional "micromanagement" of a war -- and there's not -- this wouldn't be that. There would be no congressional officials here overseeing the President's discretionary responsibilities; no requirement that the President get approval of one or both Houses before taking certain actions. There would, instead, simply be limitations on a war imposed by statutes passed with the President's signature or by supermajorities of both Houses of Congress over the President's veto.

Just as the McCain Amendment prohibits the President from using cruel, inhuman and degrading treatment against Al Qaeda prisoners; just as numerous other statutes and treaties place limitations on how the President can conduct war or other conflicts (e.g., the torture statute; the War Crimes Act; the War Powers Resolution; FISA; the Habeas Act; the UCMJ (upheld in part in Hamdan, over the President's objections that it would impinge on his ability to defeat the enemy); the Boland Amendments; a bunch of statutes at the tail-end of the Vietnam War prohibiting the use of funds for the use of armed forces in particular nations, such as Cambodia); just as numerous other statutes have authorized hostilities only for certain purposes and on certain conditions, thus imposing implicit limitations (e.g., the statute upheld in Little v. Barreme; the 1993 Defense authorization provision that funds could be obligated in Somalia beyond March of 1994 only "to protect American diplomatic facilities and American citizens, and noncombat personnel to advise the United Nations commander in Somalia"; etc.); -- and odds are that Senator Biden voted for the vast majority of these statutory limitations on the Commander-in-Chief . . .

. . . so, too, the hypothetical statute here would prohibit him from using more than a specified number of troops in Iraq, and/or require that the troops be used only for particular purposes and only for a specified period of time.

The issue is a complex one. Arguments are, indeed, often made for disabling Congress from limiting the Commander-in-Chief's discretion. And one can certainly imagine the President and the Vice President making such arguments. But Democratic critics in Congress? Does it make any sense for them to disclaim some of Congress's most important powers for checking the Executive, when there is a rich history of such statutory limitations and where there is almost no judicial authority questioning Congress's power?

Ask yourself this: Imagine a hypothetical situation in which an armed conflict has gone disasterously awry, resulting in a devastating and spiraling civil war in a major Middle Eastern nation and profound harms to both U.S. troops and our nation's long-term foreign interests. Over 70% of the U.S. public concludes that the President's proposal to escalate the conflict will only make the disaster worse, and is for that reason a terrible mistake. Over two-thirds of each House of Congress -- supermajorities that include numerous members of the President's own party -- are willing to vote to forbid him from taking such a fateful step.

Is it really imaginable that any reasonable constitution-writers -- let alone our own Framers, suspicious as they were of unchecked executive military power -- would disable the legislature from correcting the Executive's mistake under such circumstances? [UPDATE: See also this very fine and helpful analysis written by my friend and former OLC colleague Neil Kinkopf on Congress's power to enact a law to restrict a troop escalation.]
Posted 11:04 PM by Marty Lederman [link] (81) comments