Balkinization: Constitutional dictatorship: Refining the analysis

Constitutional dictatorship: Refining the analysis

Sandy Levinson

One of the respondents to my previous post points out, altogether correctly, that George W. Bush isn't truly "unaccountable." It's possible, after all, that Congress could impeach him or that it would simply vote to cut off all funds for even one more day in Iraq. Putting to one side the fact that the latter action would be irresponsible in the extreme, any genuine analysis of the notion of the American "constitutional dictatorship" must include attention to the vital role that political parties play in our political system.

Imagine, for example,

that Ross Perot had been elected and then embarked on Bush's policy in Iraq. One wonders if he would have been successful, precisely because there would have been no institutionalized party backing the Texas maverick. Even if he could have initiated some activities using his constitutional commander-in-chief powers, one could well expect that members of both parties would have been eager to engage in oversight and, should he turn out to be so dangerously adventurist as George W. Bush has been, he might well have been impeached. Who, after all, would have had any interest in saving him? Indeed, the impeachment would dramatically demonstrate to Americans the dangers of deviating from the sacred two-party system and succumbing to the blandishments of an "independent."

But, of course, this is not remotely the case. Mr. Bush is the leader of a political party, and the members of that party have a strong interest to rally around him, just as Democrats rallied around the narcissistic Bill Clinton. To be sure, there is the counter-example of Richard Nixon, but that took a long time and required the fabled "smoking gun" regarding what everyone agreed was the clear violation of an important criminal law.

In any event, though my critic was right to chide me for possibly suggesting that we suffer under a simplistic kind of one-man dictatorship, I think the term "constitutional dictatorship" still has analytic bit when one plugs into the analysis the reality of the party system and the willingness of political parties to protect even the most discredited of their leaders. This isn't necessarily true of all party systems: After all, the Tories unceremoniously dumped Margaret Thatcher. But that is, of course, becasue they could also pick her successor without going to the public. As I've noted, perhaps tiresomely, we don't have that kind of system, and, as a practical matter, no political party, with the partial exception of the Republicans finally turning on Nixon, has been willing to use the powers that might be theoretically at their disposal to hold rogue presidents truly accountable.

Posted 11:17 PM by Sandy Levinson [link]

Comments:

There is one historical example somewhat similar to your Perot hypothetical: John Tyler. Tyler wasn't a Whig, but he'd been selected as Harrison's running mate in order to gain Southern states rights votes. Once Harrison died, Tyler refused to follow the Whig platform and the Whigs then treated him as if they were the opposition party.*

Tyler wasn't impeached, though. He actually managed a Clinton-esque form of triangulation, mostly siding with Democrats, but successful with some Whigs as well (notably Webster). Tyler also adopted the Texas issue and pushed it with the support, mostly, of Democrats.

I suspect Perot would have done something similar.

While I think Brett's suggestion of impeachment is not really serious these days, his other points have more validity. I don't think most of us realized just how shell-shocked the Democrats in Congress were after 60 years of thuggish treason accusations by the Republicans. That's a shame, but the solution is more courageous Democrats.

# posted by

Mark Field : 12:04 AM

I'm not sure I agree with your latest post Sandy.

With the signing statements, secrecy, refusal to allow meaningful oversight by Congress, this administration has left only ONE option: impeachment. It's almost like having a criminal justice system where every tool for punishment has been removed except life in prison. How many judges will want to convict? How many judges will want to convict when the accused party has used its tremendous power to hide and obfuscate its actions?

By using the power of the office in this way, President Bush has created a situation where impeachment appears to be the only mechanism available and all the evidence is in the hands of the accused.

You were correct the first time. There is no meaningful accountability for this President.

# posted by

J.C. : 12:42 AM

J.C.---

Except that the case for impeachment is blisteringly obvious for any of a dozen reasons. If it weren't for the party system, there would not be the kind of incentive-structure that makes turning on a president political suicide for any Republican, and, thus, an effective non-option for the Democrats.

# posted by

ADamiani : 7:28 AM

Even granting all your points, Sandy, you're mis-using the term "dictator".

But I don't grant all your points. Sure, the party system distorts the founders' original plan for government, but it isn't the Republicans protecting Bush, they're in the minority, and it only takes a bare majority, or even a large minority under Senate rules, to prevent a line item from being funded.

Nor do they have to directly attack war funding. They can do a lot short of that to attack the President himself, such as defunding his plane, cutting off the heat to the White house, and so on. Congress, as you well know, is quite accomplished at extorting action in one area by threatening to cut unrelated funds, when the target of the pressure is the states. They could adapt these techniques to the executive branch, if they wanted to.

But the fault does not lie with the Democratic party, either, though if they wanted to, they've got the numbers to humble Bush.

No, the problem in this case is bipartisan, institutional cowardice. Congressmen have fallen into the habit of enjoying various forms of rent seeking available through the taxing, spending, and regulatory powers, while on big issues with large potential for going south with resultant blame, they defer to the executive.

Not because the executive has the power to ignore them. Not because he's a dictator. Because if you don't make the big decisions, you can't be faulted if they go wrong. It's risk avoidance among a class of people who want nothing more than to exercise some power without responsibility, rake in the resultant bribes/extortion money, and retire in due time to an exorbitant pension.

Congress attracts rent seekers, the Presidency risk takers.

This is NOT a constitutional problem. It's a political culture problem. It's the sort of thing that you get when you run a political system for a long time, without 'resets', kind of like a memory leak in an OS.

Now, I will go so far as to say that the existing political party structure, legally entrenched as it is, exacerbates the problem. It does so because it's effectively controlled by incumbent officeholders, who use the party mechanisms to pre-screen incoming fresh blood, making sure very few people who'd upset the apple cart make it into Congress. But, again, that's not a constitutional issue, it's political culture.

We have a fairly decent Constitution. That is, in fact, part of the problem: It's decent enough that we haven't had to frequently press 'reset'. Our political system is like a Windows box that's been running for months on end without rebooting or defragging the hard drive.

The real challenge at this point, I think, is how to get that "reset" without massive bloodshed. Europe has 'enjoyed' periodic descents into bloody, genocidal warfare, a pretty high price for refreshing their political culture.

I'm not sure even a constitutional convention would do the job, if it were going to be dominated by the existing political culture, and the newly reconstituted government restaffed by it.

It's a problem which bears some thinking. But it's not the problem you want to believe.

# posted by

Brett : 7:47 AM

I would add that the problem is also made worse by the (Also non-constitutional) leadership structure in Congress, institutional rules designed to shift the vast majority of members' power into the hands of an insular (Because they're in 'safe' districts.) self perpetuating minority.

All sorts of features of the Congressional rules, such as the enrolled bill rule, 'voice' votes without quorums, and so on, are designed to make sure the leadership get their way regardless of what the members want, unless they manage to outrage the members to the point of total revolt.

This could perhaps be addressed at the constitutional level, (To some extent, it's a result of the courts signing off on significant constitutional violations!) though obviously the relevant amendments would need to originate from a convention, they'd never make it out of Congress.

# posted by

Brett : 7:53 AM

To be sure, there is the counter-example of Richard Nixon, but that took a long time and required the fabled "smoking gun" regarding what everyone agreed was the clear violation of an important criminal law.

If keeping people in prison without filing charges against them, and torturing them, isn't a "smoking gun," then I don't know what is. The reason for the different treatment of Nixon and Bush is that, in Nixon's day, Congress had a minimal sense of responsibility to the nation and the Constitution; they at least acted -- Republicans and Democrats -- after the smoking gun was found.

# posted by

Henry : 9:56 AM

Sandy:

In your last thread, you chided me for being a polemicist in my critique of your unaccountability argument. I would suggest that your use of terms like "constitutional dictator" and "completely unaccountable" are far closer to polemy than accurate descriptions of the factual state of affairs.

You appear to be arguing that the President should be held to greater accountability between elections my making it easier for Congress to remove the President from office than is already provided by the constitutional impeachment power.

You do not have to inaccurately call the President a completely unaccountable dictator to make this argument.

# posted by

Bart DePalma : 10:01 AM

Tyler was a one term president, plus did he do something as weighty as involvement in Iraq et. al. that would require such strong party backing?

I have shared Brett's overall point expressed above in the past without sharing his constitutional views overall and find this blatantly wrong:

It's possible, after all, that Congress could impeach him or that it would simply vote to cut off all funds for even one more day in Iraq. Putting to one side the fact that the latter action would be irresponsible in the extreme

First, Congress could have did a lot of things a lot less than impeachment -- the refusal of the House to okay the FISA law is but an example -- that would have mattered a lot. Impeachment was not the only check.

Second, "all funds" is blatant hyperbole. They could have, e.g., only voted funds with strings attached, voting for certain basic necessary funds (like feeding the troops in the field etc.) Doing so repeatedly -- not just one token vote on a weak measure -- would have sent a strong message.

That the Congress -- as appears to be the will of the majority of the people -- challenges the President -- will you continue your poisonous policy, a policy against the will of the people, a policy sooo important that he is willing to reject Congress' funding rules to follow?

A policy that is "blatantly irresponsible." Of course, Congress had power, as Brett notes, in any number of ways to make his life difficult w/o hurting the troops in any fashion, including blocking confirmations etc.

But, they find holding a couple people in contempt for not even showing up to be questioned not first priority. They enable constitutional dictatorship. They should get a fair share of the time in your "Carthage must be destroyed" cover of the matter.

More than they get.

# posted by

Joe : 10:04 AM

Tyler was a one term president, plus did he do something as weighty as involvement in Iraq et. al. that would require such strong party backing?

Yes, the annexation of Texas.

# posted by

Mark Field : 11:06 AM

The importance of Texas is not to be denied, but he failed in obtaining a treaty, leading to a move to annex by congressional resolution a few days before he left office and a pro-expansionist Democrat would fill it.

Sorta an Iran Resolution in 1/09, after McCain was elected. I'll take the point, but it underlines the comparison is a bit weak in various ways.

# posted by

Joe : 11:38 AM

"clearly, lincoln could be fairly described as acting as a constitutional dictator, just as bush can be."

Lincoln, who had opposition press shut down, political opponents delivered to military courts, and went so far in one rage as to order the Chief Justice arrested for ruling that he didn't have a power to suspend habeas without an order from Congress, was vastly more deserving of the title, "dictator", than Bush is. Call Bush a dictator when you're doing it from a prison camp.

# posted by

Brett : 8:39 PM

Oh, and tell me Bush is impervious to anything short of impeachment when they've actually tried something besides whining. Once again, it's not that Bush can't be reined in by Congress, it's that Congress doesn't chose to rein him in.

What Sandy wants is to hugely shift the balance of power between the legislative and executive branches, to the point where even a razor thin majority of abject cowards would be capable of dominating a determined President.

I do not think that wise.

# posted by

Brett : 8:42 PM

Lincoln, who had opposition press shut down, political opponents delivered to military courts, and went so far in one rage as to order the Chief Justice arrested for ruling that he didn't have a power to suspend habeas without an order from Congress

While I've leaned to Brett's side of this debate, I have to say that his characterization of Lincoln here is essentially false. The true facts are these:

1. A few opposition papers -- out of hundreds, if not more -- were temporarily shut down by subordinate officials. They were almost immediately restored.

2. Some subordinate officials did, on a few occasions, arrest people whose only "crime" was political opposition, and send them to military courts. In most such instances the cases were eventually dismissed. In one prominent case, the defendant was sent to the South.

3. Lincoln did lose his temper at Taney and considered arresting him but thought better of it.

If Bush had done so little wrong, under similar provocation, he'd be a civil liberties hero.

# posted by

Mark Field : 11:08 PM

If Bush had done so little wrong, under similar provocation, he'd be a civil liberties hero.

The operative words here are "under similar provocation." Bush has not gone this far, but then again, we are not facing anything like the crisis we faced during the Civil War.

# posted by

Essayist-Laywer : 12:03 AM

"One of the respondents to my previous post points out, altogether correctly, that George W. Bush isn't truly 'unaccountable.'"

Well, if you delve deep enough, everyone's accountable to a bullet. Accountability is always a matter of degree, and it's only those who wish to be unaccountable who pretend otherwise.

# posted by

Unknown : 3:01 AM

But Bush is accountable to a wide range of actions Congress, could, but does not, undertake. He's clearly acting abusively, but it's very important to recognize the vast extent to which Congress enables his abuses, when discussing Sandy's proposal to give Congress more power to do what it choses not to do.

# posted by

Brett : 8:55 AM

"can he be removed?

only through impeachment."

I predict with some confidence that he can be removed by waiting until January 20th of next year.

In the meanwhile, has Congress lifted a finger to stop Bush? Yes, one of ten, and the wrist hasn't twitched.

# posted by

Brett : 8:09 PM

Everyone here is talking of impeachment or other forms of Congressional backbone as the only barriers to the BushCheney dictatorship.

But once they leave office, why isn't criminal prosecution another option? While some of Bush's "offenses" become moot when he leaves office (eg signing statements), some of his other actions constitute bona fide crimes that come with real live criminal penalties.

If dictatorship is the issue than accountability is the answer. While political accountability via impeachment would have been better, legal accountability is necessary to stave off the terrible damage that Bush has done to the constitution.

If Obama or Clinton is elected, and regains control of the (hallowed out) DOJ, why can't the criminal division undertake a serious investigation of these issues? This is a last resort, but just like the ICC it is a last resort that is necessary to prevent future dictators from thinking that they can flout the law with impunity.

Any reasonably articulate president could make this case to the American public. Few people would rise up to shield BushCheney from an ongoing criminal investigation by the Justice Department.

The only problem is that Bush will probably pardon himself for all possible crimes the night before he leaves office.

# posted by

Unknown : 7:04 PM