Balkinization: A description of constitutional dictatorship:?

A description of constitutional dictatorship:?

Sandy Levinson

Tomorrow's New York Times Book Review has an extensive review by Jill Abramson of Bob Woodward's The Final Days. There is much to ponder about regarding similarities between Mr. Bush and Sen. McCain in terms of their leadership styles, including inordinate confidence in their own rectitude and a tendency toward impulsive decisionmaking. But I'm most struck by the following:

“In the end, one lesson remained,” Woodward concludes, “a lesson played out again and again through the history of American government: of all the forceful personalities pacing the halls of power, of all the obdurate cabinet officers, wily deputies and steely-eyed generals in or out of uniform, of all the voices in the chorus of Congress clamoring to make themselves heard, one person mattered most.”

Perhaps it's an analytic truth that in any system of government "one person [will matter] most," but isn't it the case that we've carried this to excess in the United States, given that that person will almost always be the President, whether or not he is thought to be competent? Our presidentialist system, whatever its merits in 1787 (when, of ocurse, everyone assumed that George Washington would become the first president), carries with it extraordinary dangers if there is no way of firing a president who is incompetent. Is it fair to offer Woodward's comment as a good first-cut description of what is meant by a "constitutional dictatorship," espcially if the person who matters most has the authority to trigger war and cause death, mayhem, and destruction?

Yes, it's true that Mr. Bush was elected in 2004, even after his incompetence was manifest to many, but a contributing reason was the unwillingness of those around Bush to tell the American people the truth about what he was really like. Woodward apparently describes a White House full of fawning courtiers or people who are simply afraid to stand up to the Great Decider, including Colin Powell (sadly). Perhaps it is best to stick with the system we have, including a rigidly fixed-term presidency so long as the President doesn't commit a "smoking-gun" crime, but shouldn't we recognize that this comes at enormous costs, both to us and to the rest of the world, so we should be damned clear about what benefits outweigh the costs?

Needless to say, no such questions were asked last night in the debate, because we take the four-year tenure in office as undiscussable given, and it is certainly quixotic to expect Obama and McCain to offer any criticisms of the constitutional structure of the office for which they are running. But perhaps one might discuss the issue of presidential power itself, including on particular power of the president: to pardon. (Many anti-Federalist opponents of the Constitution focused their criticisms on this power, which they rightly associated with monarchical power in effect to suspend the operation of ordinary law with regard to royal favorites.) Might not Jim Lehrer have asked McCain and Obama their views about the potential pardons, by Mr. Bush, of everyone linked with torture? Presumably he has the constitutional authority to do so. That's an easy question. But would they both agree that any such use of his power is to be condemned? (Or would that be an essential step in "putting the issue behind us and preventing a 'political witch hunt'"?) And, if he does exercise his pardoning authority, what would their views be about appointing, presumably with congressional authorization, a National Commission of Inquiry with a significant budget and subpeona authority to study exactly how it is that the United States has become synonymous, all over the world, with torture? This is surely relevant, incidentally, to understanding some of difficulties in the arena of foreign policy, the topic of last night's "debate."

John McCain wants to appoint a national commission to study the origins of the ecoomic crisis. Why not a similar commission to study the origins of our moral/political crisis forged by David Addington and his minions in the Bush Administration who took the US very much into the Dark Side? Sen. McCain has a generally admirable record of standing up against the devotees of torture in the Bush Administration. So why wouldn't he support a commission, especially in circumstances where no one could go to jail given the presumptive pardons issued by Mr. Bush? Ditto Obama.

Posted 6:36 PM by Sandy Levinson [link]

Comments:

Sen. McCain has a generally admirable record of standing up against the devotees of torture in the Bush Administration.

I don't know why you say this. See, e.g., here.

# posted by

Mark Field : 7:46 PM

As for the pardon power, I think there are good reasons to vest it in the President. However, the abuses over the years also show some limitations we might want to put on it. For example, we might put a time deadline of Sept. 30 in every election year. This would force the President (or a candidate from his/her party) to pay a political cost for controversial pardons.

Other examples: we could insist that every pardon be requested; and that no pardon be issued for government officials until after all appeals have been exhausted. I'm sure there may be other tweaks as well.

In your view, should Congress be able to impose such limitations under Art. I, Sec. 8, cl. 18, or is the pardon power plenary such that we'd need an amendment?

# posted by

Mark Field : 7:52 PM

The problem is that not enough people have read your book, and with the current low levels of reading, few are going to. I think you need to put out several new versions, in paperback. One should have a picture of a beautiful, scantily clad woman on the cover. Another, perhaps, should have a bronzed Adonis. I'm not sure how to attract the Christian crowd, but I bet your publisher can think of something. Maybe a version for kids and their parents, retitled something like "Lincoln's doctor's dog goes to Washington".

# posted by

Bill : 7:54 PM

"carries with it extraordinary dangers if there is no way of firing a president who is incompetent."

Is there a way of firing a Congressional majority that's incompetent?

# posted by

Brett : 8:53 PM

I suspect that most constitutional lawyers would think that the pardoning power is plenary. I confess that I haven't thought enough about permissible limits to offer a confident answer in my own voice. I'd welcome a post by Marty Lederman, who I am sure has thought about such issues.

# posted by

Sandy Levinson : 9:29 PM

Sandy:

The voters knew very well who Mr. Bush was by 2004, re-elected him and knowingly chose the "Dark Side" over your preferred policies by a solid majority. Live with it. It has been 4 years now.

If those same voters have a brain fart in 2008 and elect Mr. Obama, you will not hear me decrying the Constitution or the Republic. I will be unhappy, but I will live with it. Such are the ebbs and flows of democracy.

Indeed, because I know there is nothing close to a "constitutional dictatorship," that the President plays second fiddle to the Congress in our system and that all the branches are checked on multiple levels, I am not particularly concerned that Mr. Obama will be able to enact even a substantial minority of his more hare brained leftist policy preferences. If he even gets close to doing so and exposes his moderate poses as lies, we voters get to clean house in 2010 as we did in 1994.

Moreover, because the rather modest changes enacted by Mr. Bush over the past 8 years were because of his decisiveness and stubborn nature, none of which the contemplative (read indecisive and dithering) Mr Obama possesses, there is even less chance of any real change if Obama occupies the Oval Office. Mr Obama has accomplished nothing of note during his public life to date and is unlikely to start in 2009. Instead, he will largely be merely "present" in the White House as he was during his brief legislative career.

You see the beauty of our system is that it checks rather than aggrandizes the concentration of power. You truly need a super majority consensus to get any substantive changes enacted, which of course means that the enactments that led us to the "Dark Side" during the Bush Administration were in reality supported by a super majority consensus rather than implemented unilaterally by anything that resembles a real dictatorship.

# posted by

Bart DePalma : 10:01 PM

Well I have a few theories about pardons.

One, Bush can't pardon himself.

Two, anyone he does pardon can't take the fifth for the offenses and can be forced to testify against Mr. Bush.

Three, a pardon might very well be an offense in and of itself if it's intent is to aid or abet a crime.

I'll worry about the other stuff after the next President takes office. Meanwhile, according to them, everything they've done has been perfectly legal -- who needs a pardon?

# posted by

Charles Gittings : 10:21 PM

Is there a way of firing a Congressional majority that's incompetent?

Yes, every two years.

# posted by

Mark Field : 12:15 AM

This goes back to the process by which your Founding Fathers decided to adjust the constitutional settlement with which they were most familiar - that of Great Britain.

The royal powers relating to foreign affairs: treaties, ambassadorships, making war, etc were split between the Congress and the President. The power of pardon was allocated to the president alone.

But the Royal powers of the British monarch could only be exercised on the advice of ministers, and while the crown was not answerable to the legislature (but in theory part of it), ministers were.

In our system pardons are only granted on the advice of the Home Secretary who is answerable to parliament to for his recommendations.

In reality our executive is more answerable to the representatives of the people in the legislature than is yours: and you do have what is in effect an executive which is only directly answerable once: at the the election for a 2nd term, and only theoretically answerable by way of impeachment - which is rare.

Bart de Palma asserts:-

"You see the beauty of our system is that it checks rather than aggrandizes the concentration of power."

That's absolute balderdash. Your settlement is now less answerable to the people by their representatives than any other in the western world. The only checks on executive power are negative: the so called-power of the purse, the power not to legislate in accordance with the wishes of the executive, and the weak restraint of judicial review.

Even the legislative power is increasingly being circumscribed by so-called "signing statements".

Not for nothing do some scholars assert that the USA is a republic but not a democracy.

# posted by

Mourad : 5:04 AM

OK, Sandy, now's your chance to weigh in on whether Congress stood up to the constitutional dictator in the bailout negotiations. Seems to me that Congress did its job, which may go to your earlier point that the dictatorship idea is most salient on the international plane.

Here's a report on the results of the negotiations:

The measure's main elements were proposed a week ago by the Bush administration, with Paulson heading efforts to push it through the Democratic-controlled Congress. Democrats insisted on greater congressional oversight, more taxpayer protections, help for homeowners facing possible foreclosure, and restrictions on executives' compensation.

Despite the changes made during an intense week of negotiations, the heart of the program remains Bush's original idea: To have the government spend billions of dollars to buy mortgage-backed securities whose value has plummeted as hundreds of thousands of Americans have defaulted on their home loans.

# posted by

pinkerd : 5:46 AM

Politics is the art of the possible.

The Administration has one set of objectives and needs the Congress to legislate to achieve those objectives. The Democratic majority in the Congress has another set of objectives. Both sides know something must be done now to avert a fiscal meltdown. Both sides also know that in a few weeks there are (i) reasonable prospects of an increased Democratic majority in both houses of the Congress and (ii) reasonable prospects that the Administration will also be very different.

So the objective has been to achieve the minimum necessary to prevent the melt-down in the very short term - to hold the fort until the makeup of the new administration and the new congress is known - and to constrain the present administration's power to spend to the maximum extent possible - while sending the right sort of message to the financial markets.

This has been a high-stakes game of "chicken", played with taxpayer money - and with the knowledge that how the game is played will impact on the election results.

You may well think this is no way to run a banana republic, let alone the affairs of the world's largest economy.

But if the people are sovereign, then they have the form of government they want - warts and all. And if it all goes horribly wrong, then then a movement for change may be the result.

# posted by

Mourad : 6:24 AM

Perhaps it is best to stick with the system we have, including a rigidly fixed-term presidency ... but shouldn't we recognize that this comes at enormous costs...

Sandy,

I think you are bumping up against natural and immovable problems of governance. Without decision-making apparatus there is no way to steer a ship. With decision-making comes second-guessing and discontent. There is no way around this.

I think I.F. Stone's "The Trial of Socrates" is a superb overview of the history of human governance and the problems inherent in the process.

I also think--and you may be shocked to learn this--that there is a class of people best described as "wingnuts" whose opinions ought to be courteously heard and then speedily discarded.

# posted by

mattski : 10:09 AM

Looks like our "constitutional dictator," who went hat in hand to Congress and whose Sec Treasury was literally begging with the congressional leadership on multiple occasions, had to comprise substantially in order to arrive at a super majority consensus in Congress on a rescue package.

Indeed, we see the checks and balances within the Congress itself as the Dem leadership had to compromise with the House GOP and the Blue Dog Dems by stripping the bill of the Dem earmarks for the likes of ACORN Housing and Dem demands to allow bankruptcy judges to set the value of the foreclosed mortgages rather than the market.

Moreover, it appears that our thoroughly checked and balanced government can still act very quickly when the issue is of great importance.

This is why our Constitution has remained largely unchanged for over two centuries - it works.

# posted by

Bart DePalma : 10:28 AM

As an example why our Republic is the antithesis of a "constitutional dictatorship," here is a side-by-side comparison of the Paulson plan, the Dodd plan and what is hopefully the final compromise plan.

# posted by

Bart DePalma : 11:20 AM

I wonder:

How many members of Congress are really insecure with respect to their financial situations as compared with the masses? Most former Congressmen, including those considered failures, seem to survive quite well, whether as registered lobbyists or in some similar "bag-man" guise. (And ex-Presidents do even better.) So they are not really the losers who pay for the bailout.

# posted by

Shag from Brookline : 12:25 PM

Sandy Levinson wrote:
There is much to ponder about regarding similarities between Mr. Bush and Sen. McCain in terms of their leadership styles, including inordinate confidence in their own rectitude and a tendency toward impulsive decisionmaking.

Anyone who would sing "bomb bomb Iran" and somehow think it appropriate in any venue has a judgment deficit deep enough to be persistent.

# posted by

John : 11:59 AM

As concerns the House Republicans' "insurance" stuff (as adverted to in "Bart"'s link of summaries here):

Insurance (HouseRepublican Mode)

Requirement to establish mandatory insurance/guarantee program at no expense to the taxpayer. “Pay to play” for participating companies, based on risk.

This is a shell game. "[A]t no expense to the taxpayer."

Who's going to 'fund' the payouts/claims against this insurance? Who's going to run it (and back it)? What are the rates?

If there's little risk of a claim, who would buy it? If there is a big risk of a claim, who's going to pay the claim?

You can't manufacture something from nothing, and if the securities are defaulting, and you want to protect that, someone has to take the loss. "Insurance" implies that it's not the companies holding the trash. Who then? Why not just pay them off without this 'self-paying' "insurance" legerdemain? Not to mention, insurance only 'works' prospectively; when you allow insurance after the fact, it isn't "insurance"....

Talk about hare-brained (and even that is an insult to Leporidae)....

Cheers,

# posted by

Arne Langsetmo : 1:55 PM

http://balkin.blogspot.com/2008/09/george-orwell-would-be-proud.html

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