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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts A description of constitutional dictatorship:?
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Saturday, September 27, 2008
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:
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.
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?
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".
"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?
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.
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.
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?
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.
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.
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.
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.
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.
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.
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.
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.
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,
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