Balkinization: A "natural experiment": Functioning without an effective (or legitimate) government

A "natural experiment": Functioning without an effective (or legitimate) government

Sandy Levinson

A joke of my youth--I have recently returned from my 50th high school reunion in Hendersonville, North Carolina--was that Harry Truman proved that anyone could be president, and that Ike showed that we didn't need a president. That was, of course, unfair to Ike, who has justifiably risen in the ranks among historians, not least because he was wise enough to keep us out of Vietnam and made generally excellent appontments to the federal bench, including, all importantly, the 5th Circuit. But we are now engaged in what social scientists call a "natural experiment" testing at least one aspect of the joke: Do we actually need a president, or is it perfectly all right to have in office someone without the slightest semblance of political authority even over, as it turns out, his own political party? I suspect that John McCain these days would be even more sneering about Bush as "that one" than about Obama.

Presumably we can stumble along on the international economy front because Ben Bernanke and Henry Paulson are available to make proposals and promises that other countries might take somewhat seriously. But what about foreign and military policy? The New York Times reports that Admiral Mullen, the outgoing head of the Joint Chiefs, gives a "grim" prognosis about the future of our efforts in Afghanistan. And, of course, the United States is negotiating with Iraq about the de facto terms of withdrawal. Perhaps the US does have a government inasmuch as George W. Bush has the legal authority to command the military and to make (though, of course, not to ratify) treaties. So one might note that another version of that joke was that (your unfavorite president) proved that it could be dangerous to have a president. Needless to say, I think that Bush proves this in spades.

He will obviously be out of office in fourteen weeks (Oh blessed day!!). But in the meantime he can make decisions. Why in the world should he be able to make such decisions for even a day following November 4, when we an assume that President Obama or possibly even President McCain would be unhappy with them in various respects? When Attlee beat Churchill in 1945, he rushed off to Potsdam to replace the defeated PM, who, whatever his stipulated greatness, had lost the authority to make commitments that would be binding on the UK. Yes, I know we have a presidential and not a parliamentary system, but we could surely modify it to make sure that a completely discredited president is not in the position that Bush is now in, i.e., "negotiating" with foreign governments and making important military decisions that will inevitably affect the administration of his almost infinitely more legitimate successor. All one has to do is to mount a national campaign for Dick Chency to resign and be replaced, immediately, with the winner of the election, who will then immediately succeed Bush upon his own resignation the moment after the new VP is confirmed by Congress and takes his oath of office. This requires no amendment or convention. It simply requires "putting country first."

UPDATE: I note the following paragraph from Karen DeYoung's article in the Washington Post on the Administration's "urgent" review of its failed policy in Afghanistan:

As the U.S. presidential election approaches, senior officials have expressed worry that the situation in Afghanistan and Pakistan is so tenuous that it may fall apart while a new set of U.S. policymakers settles in. Others believe a more comprehensive, airtight road map for the way ahead would limit the new president's options.

Could any single paragraph more fully capture the defectiveness of our constitutional system with regard to maintaining in office a completely inept president, even after his justified repudiation by the voters, or the ability of that president to attempt to "limit the new president's options"?

Posted 2:28 PM by Sandy Levinson [link]

Comments:

Prof.,

I've let this sit a couple of hours and no one has jumped, so I hope you'll forgive my if I post something admittedly tangential.

I've spent the past 20 minutes or so reading the comments on an article at James Hibberd's "The Live Feed", Exclusive: Obama buys half-hour of network primetime.

All I can say is wow. I forget how bad it can get away from the well behaved places like this, just as I forget that there really are folks who speak with a straight face of Newt Gingrich appearing regularly in "The No Spin Zone" on a self-proclaimed "Fair and Balanced" network.

One thing for sure, a half-hour's blog-comments slumming has me less sanguine than ever about pure democracy, and a byzantine system where one branch predictably suffers almost total loss of power is still to be favored over letting the masses vote for bread and circuses.

Elitist clap-trap some will say, as they argue to vote for representatives and policies that will continue to support the top one percent at the expense of the rest of us. Me, I'll take the lousy system we've got, as I can't imagine any deep changes which don't lead to something worse. (That is, would you really want to see a Constitutional Convention in a world where "The Biggest Loser" can sell ad space? Not me, Sir, not me.)

# posted by

Robert Link : 5:24 PM

Well, we're testing whether the nation can get by without a government Sandy Levinson views as legitimate, anyway. Somehow I suspect we can.

# posted by

Brett : 5:46 PM

What Brett said. LOL.

# posted by

sean : 7:00 PM

With respect, you might note that I'm not calling for a constitutional convention or even a constitutional amendment, only that We the People insist that a new government, one with both greater competence and political legitimacy, be installed ASAP after the November 4 election. There is a perfectly constitutional way to do it, but it would take a real show of patriotism on the part of Dick Cheney and George W. Bush. Maybe you believe, altogether correctly, that that's as likely as pigs learning to fly. But do you really think it's desirable that they remain in office until January 20, 2009, given our present situation?

Is Brett one of the 22% or so of the country that thinks that approves of the Bush presidency? (Does he lament the fact that the 22nd Amendment deprives us of the chance to vote him a third term?)

# posted by

Sandy Levinson : 10:48 PM

Prof.,

Touche. W. and his string-puller could accomplish that which you desire by resigning. That would leave exactly who in charge until January 20? Pelosi? (I should know this one, but confess it escapes me at the moment.)

I recall reading a lament in a chess book a while back about the demise of what the writer considered the good grace to resign a losing position. If matters of face preclude resigning in an otherwise inconsequential game, how much more so when there is still plenty of patronage to bestow during one's lame duck days?

Do I _want_ these thugs to spend one unnecessary second at the helm. Not only no, but heck no. I'm just more worried about what I consider the plausible alternatives than about the undeniably lousy status quo.

# posted by

Robert Link : 1:12 AM

"I'm not calling for a constitutional convention or even a constitutional amendment, only that We the People insist that a new government, one with both greater competence and political legitimacy, be installed ASAP after the November 4 election."

He will be: January 20th.

# posted by

Brett : 7:10 AM

Recall the specious claims of the Bushies about how the Clintons trashed the White House in their departure to make way for SCOTUS's selected successor. Some 8 years later, we have a demonstration of the Bushies trashing the entire nation, and perhaps the world, dumping problems they created upon George W's successor. At least the Clintons left a surplus. Our first MBA President has not done well with America's finances. Perhaps the Bush/Rove/Cheney goal to undo the New Deal was intended to revert to Hoover, creating a vacuum of credibility financially and otherwise. But maybe, just maybe, "Happy Days Will Be Here Again."

# posted by

Shag from Brookline : 7:51 AM

Please, Sandy, give us a break. According to yesterday's news, McCain hasn't even permitted his transition team to meet. All the ex-leaders of transition teams say already there is not enough time. I have some knowledge of the transition briefing papers being prepared within one cabinet-level department, and they won't be ready for consolidation until November. If you have some time, take a look at the Presidential Transition Act mentioned in W's executive order yesterday and tell us what the current plan is.

# posted by

Anonymous : 8:09 AM

The fact that McCain has been irresponsible with respect to preparing for a transition does not infer anything about Obama, who has been planning for the transition for months (which drew criticism from McCain, you may recall). It would, to be sure, be a bit "awkward" for Obama to take the oath on, say, November 10, but it would be even more awkward to have the incompetent and functionally illegitimate regime of George W. Bush in power for even one more day than is necessary. And it is NOT necessary that he remain in office until January 20.

# posted by

Sandy Levinson : 8:58 AM

Prof. Levinson:

According to Real Clear Politics, Congresses approval rating is at 16.8%. Are you calling for Speaker Pelosi and Harry Reid to resign on November 6? Did you call for Tom Foley and George Mitchell to resign on November 8, 1994 after they were repudiated? Somehow, I doubt it . . .

# posted by

Scott : 9:19 AM

Oh, I'd also point out that Gordon Brown's approval rating is now about 15%, but somehow he's still GB's prime minister, and will likely remain so until whenever they have their elections. Right now, I can't think too many politicians in the entire world are particularly popular given the global financial meltdown, but who knows?

# posted by

Scott : 9:42 AM

Scott said...

Prof. Levinson:

According to Real Clear Politics, Congresses approval rating is at 16.8%.

I think it takes more than disapproval and incompetence to spur a strong enough movement amongst the populace to replace a government.

# posted by

John : 10:06 AM

According to Real Clear Politics, Congresses approval rating is at 16.8%. Are you calling for Speaker Pelosi and Harry Reid to resign on November 6?

I see this talking point a lot on the Right. While I think the flaws in it are pretty obvious, I'm going to spell them out in case they aren't.

This suggestion fundamentally confuses the two branches of government. The president is a single individual. The polls of his public support necessarily apply only to him. Congress, in contrast, is a collective body. The unpopularity of the group does not mean that a particular individual is unpopular.

Moreover, nationwide polls of Congress are irrelevant to the continuance in office of particular Members under our governmental structure. The obvious reason for this is that Members are elected from particular districts/states, not nationwide. The only polls which count for Reid or Pelosi are those in their districts/states.

Finally, this comment confuses the dynamics of a collective body with a single executive. The unpopularity of Congress may be entirely irrelevant to the popularity of the leadership of one party. Just for example, the unpopularity may reflect Republican obstructionism for which Pelosi and Reid are not to blame.

# posted by

Mark Field : 10:44 AM

Scott:

According to Real Clear Politics, Congresses approval rating is at 16.8%. Are you calling for Speaker Pelosi and Harry Reid to resign on November 6?

If they go down to defeat in the elections, you might have a point. Until then, let's dispense with such silly 'argumentation', m'kay?

Cheers,

# posted by

Arne Langsetmo : 1:02 PM

The point of my posts is I don't think that Pelosi or Reid or anyone else should resign regardless of their approval rating. We have politicians who are elected for fixed terms and they get to serve those fixed terms just like every president since Washington has. Maybe Obama pulls off a bigger win than Reagan did against Carter (I doubt it) but even if he did, GWB was elected by the people in 2004 to serve until January 2009 just like Carter was elected to serve until January 1980.

Regarding GWB's bad approval ratings, not all those who disapprove of him approve of Obama; again, maybe he'll win 78% of the popular vote, but somehow I doubt it. I expect Obama to win about 53-55% of the popular vote, with the present financial crisis, it would shock me if any incumbent party could hold the presidency; but a 55% win is not reason to take the unprecedented and frankly delusional steps Levinson suggests.

# posted by

Scott : 3:24 PM

According to Real Clear Politics, Congresses approval rating is at 16.8%.

Duh. Democrats hate the Republicans in Congress, and Republicans hate the Democrats in Congress. It's a wonder the approval rating is ever over 0%.

(They break down that approval rating several different ways, though; at least they do in other polls. Is 16.8% a consistent number?)

# posted by

PMS_CC : 7:57 PM