Balkinization: I read the news today, oh boy....

I read the news today, oh boy....

Sandy Levinson

Before I respond more directly to Jack's post taking issue with my views on the dysfunctionality of our present constitutionally-induced hiatus between election day (which is NOT set out in the Constitution) and the inauguration of the new President (which IS set out in the 20th Amendment), I thought it might be useful to do a quick recap of some of yesterday's and today's news articles and punditry. First, an article in today's NYTimes, "Hints of Relief from the Siege," includes the following paragraph:

The ever-changing direction and momentum of the so-called Troubled Asset Relief Program, or TARP, at the Treasury has baffled many industry executives. In recent days, a growing number of analysts has worried that the interregnum between President Bush and Mr. Obama had created a dangerous vacuum in policy-making.

Next, also in today's Times, Gail Collins begins her column by noting that "Thanksgiving is next week, and President Bush could make it a really special holiday by resigning. Seriously. We have an economy that’s crashing and a vacuum at the top. Bush — who is currently on a trip to Peru to meet with Asian leaders who no longer care what he thinks — hasn’t got the clout, or possibly even the energy, to do anything useful."

Nobel-Prize winner Paul Krugman began yesterday's column in the Times as follows:

There is, however, another and more disturbing parallel between 2008 and 1932 — namely, the emergence of a power vacuum at the height of the crisis. The interregnum of 1932-1933, the long stretch between the election and the actual transfer of power, was disastrous for the U.S. economy, at least in part because the outgoing administration had no credibility, the incoming administration had no authority and the ideological chasm between the two sides was too great to allow concerted action. And the same thing is happening now.

It’s true that the interregnum will be shorter this time: F.D.R. wasn’t inaugurated until March; Barack Obama will move into the White House on Jan. 20. But crises move faster these days.

And Floyd Norris, in a column entitled "Looking to Washington Amid Turmoil, So Far in Vain," writes:

With the stock market plunging and the credit market entering a new freeze, cries are being heard for a new government intervention to prop up major financial institutions before President-elect Barack Obama takes office.

“We can’t get from here to Feb. 1 if the current ‘who’s in charge?’ situation continues,” said Robert Barbera, the chief economist of ITG, an investment firm, arguing that Congress should adopt a stimulus package, including temporary tax cuts, as rapidly as possible. Instead, he said, Washington seems paralyzed. . . .

By resigning from the Senate before the current session began and allowing it to appear that a sense of drift could prevail until he is inaugurated, Mr. Obama may have missed an opportunity to exert leadership.

But why in the world would anyone believe that Mr. Obama might have been able to "exert leadership" by remaining in the Senate for even one more day? Consider the final story from yesterday's Times, about lameduck Congresses, including the current one, aptly titled "Lame Duck Session Winds Up with Little to Show." Key paragraphs include:

Lawmakers may yet be back next month, but for now the meager results show why lame-duck sessions often do not work. And why some historians and scholars of Congress, not to mention some of the most prominent lawmakers over history, think that calling such sessions lame is overly generous.

The result this week was that America’s automakers, already reeling from the hard economic times, got banged over the head with a hard lesson about legislative politics in Washington.

Democrats are relishing their more robust majority next year — and a Democratic president — and so they saw no reason to cave to Republican demands. Republicans, in turn, while chastened by the election results, saw no reason to fast-forward Democratic control of Washington.

Several Republican lawmakers who are either retiring or were defeated said they would not support aid for the auto industry. And their impending departures gave them little or no incentive to compromise, evidence of why postelection sessions are dicey.

I have, of course, been railing against the hiatus between election and inauguration, which Jack (and others) defend by emphasizing the importance of the "transition." But there is no such argument available with regard to waiting until the beginning of January to begin the new session of Congress. The 20th Amendment moved up not only Inauguration Day, but also the time for the new session. In the 21st century, newly elected members of Congeress should take their seats within a week of the election. Yes, I know that would leave poor Alaska and Minnesota without senators until the votes are counted, and Georgia has to have its runoff. But that's no excuse for leaving the rest of the country to be governed (or, more accurately, ungoverned) by irascible lameducks.

So now let me turn to Jack's particular arguments, which are obviously thoughtful and well-expressed, but, I regret to say, not persuasive to me. The first has to do with the importance of the transition to pick effective officials, etc. There is, of course, a lot to that argument. But I think that Jack (and others) underestimate the costs, expressed in the various stories mentioned above, of the roughly 11-week hiatus. Why can't the transitioning be done in, say, four weeks? At the very least, as I've argued incessantly, candidates would be expected to appoint "transition teams" immediately upon their nominations, and the last couple of weeks of the campaign could include candid discussion of who is on short lists, if not the nominees themselves. The only argument against this, frankly, is that a candidate might reasonably want to pick one or two people who supported his/her opponent, as part of the "national unity" project. But I have no doubt that smart and effective politicians could figure out a way to keep some of their options open even as they were far more prepared to begin governing than they are today on election day.

Let me pose the following question to Jack (and others) who defend (more of less) the present hiatus: Were you asked to advise any country in the world drafting a new constitution for the 21st century, would you advise such an hiatus between election and inauguration (assuming, of course, that you advised a presidential system in the first place)?

Jack's second argument involves the possibility of "constitutionally acceptable workarounds." I confess that I don't find them very plausible. After all, as Gail Collins notes, the problem of having a despised and ineffectual president and vice president could be solved literally overnight if both of them simply resigned (or, more precisely, if Cheney resigned to be replaced by Obama, and then Bush resigned). Her suggestion, incidentally, that both of them should resign, to be succeeded by Nancy Pelosi, is ridiculous, for at least two reasons. First of all, whatever Nancy Pelosi's considerable talents are, there is no reason to believe they include knowledge of the kinds of issues that will immediately confront President Obama. Secondly, and maybe just as importantly, to become President for eight weeks, she would have to resign from the House. (Ms. Collins, like all the other pundits, should actually read the Constitution.) Why in the world would she want to do that simply to have the honor of being America's first female President?

I also literally don't understand why Jack thinks that Congress has the unilateral power to "appoint" someone to the President's cabinet (i.e., someone not actually nominated by the President) or make the president-elect "a high White House official" without the inclumbent President's consent. One doesn't have to buy the whole "unitary executive" argument to believe that this would be a fatal incursion on our traditional notion of executive power. We could start arguing, of course, about whether Congress could simply designate someone else (say Gen. Grant) to be "commander-in-chief" of the armed forces instead of the despised incumbent Andrew Johnson. I take it that even the most anti-Bush among us (and I obviously would wish to be a contender for the Grand Prize) would find it problematic if Congress simply stated, presumably by passing a law over the president's veto, that Gen. Petreous would now be commander-in-chief and that no military official should care what the President of the United States thinks.

So let me summarize: It's not that I don't see some advantages in the time taken for the transition. But it's all a question of the costs as well as the benefits. Perhaps the real point of Jack's post is that we have a dinosaur-like national government that is just too big for its (and maybe our) own good. You can't expect a dinosaur (or a battleship) to move with alacrity, whatever the crisis. Instead, you have to pray that the crisis just won't be that serious and that we can get through it without making any painful adjustments in the way we organize our system of governance. I remain far more pessimistic than Jack, and I believe that almost every story in the daily news speaks in favor of such pessimism, alas.

What I most wish is that President Obama will actually find it thinkable to appoint a reasonably high-level commission that might consider relatively non-radical changes to the Constitution that might make it less dysfunctional for our 21st century world. There were, of course, such (private) commissions in the '80s, but they led nowhere because the message of the Bicentennial was, basically, to thank God for giving us a perfect Constitution. We need to have some "audacity of hope" that we can escape the more ridiculous chains imposed on us by our defective Constitution.

Posted 12:25 PM by Sandy Levinson [link]

Comments:

I take it that even the most anti-Bush among us (and I obviously would wish to be a contender for the Grand Prize)

You’re going to have to get in line behind me. I used to think that Nixon was the absolute nadir of American Presidents, but how could he hope to compete with a man who combines the worst qualities of Buchanan, Grant, Harding, Hoover, LBJ, and Nixon himself?

Incidentally, you misspelled “dinosaur”.

# posted by

Hank Gillette : 2:33 PM

Every president has had bad qualities, but many, including, for that matter, Grant, Hoover, LBJ, and even Nixon, have had some good qualities as well. I continue to believe that LBJ, whose war (begun by JFK) I detested, was the greatest domestic policy president of the century and that his courage in pushing the Voting Rights Act of 1965 is what ultimately made possible the thrilling election of Barack Obama. Buchanan and Harding are different, though the paradox is that, by resume, Buchanan is definitely one of the "most qualified" persons ever to be elected to the office, just as Harding was certainly among the "least qualified."

Many thanks for the correction on "dinosaur," which I will (silently) correct above.

# posted by

Sandy Levinson : 3:16 PM

I've corrected my previous post to clear up something that would otherwise be easily misunderstood. I am not advocating anything other than the ordinary process of Presidential nomination followed by advise and consent by the Senate. Bush could nominate Obama for any number of positions tomorrow if he wanted to. Indeed, he could use the 25th Amendment to make him Vice-President, since as we all know the Vice-President has actually made many important decisions during the past eight years.

# posted by

JB : 3:33 PM

A group of us in Chicago (many of whom are lawyers) recently recorded our musical farewell to W and his last eight years. The song is called "Crawl Back To Crawford." Feel free to check out the video and turn up the volume.

CRAWL BACK TO CRAWFORD
(Matt Farmer)

http://www.youtube.com/watch?v=3I9-BJtvQzE

VERSE
Well, for eight long years we've been payin' your rent
But now your lease done run
And all our money's been spent
So pack up your bags
And take a last look around
At how you drove a great nation straight into the ground

CHORUS
And don't let the door
Hit you in the ass on the way out
Don't bother with the goodbyes
Just make sure that you stay out
There ain't no need to call
No need to write
We don't even need you to turn out the light
Just crawl back to Crawford, brother
Promise that you'll leave us alone

VERSE
Every step of the way, your story's been the same
Just cruisin' through the world
On your daddy's name
You had the oilmen friends
You had the Skull and Bones
But it never would have happened if your name was Jones

REPEAT CHORUS

BRIDGE
Slam dunk, privatize, deregulate
Tax cuts, trickle down
The politics of hate
Flag pin, waterboard
Intelligent design
You were handed your throne by just five of the nine

REPEAT CHORUS X2

# posted by

Matt Farmer : 4:50 PM

Sandy:

Mr. Obama is free to offer his plan to restore economic growth at any time to fill that vacuum. The fact is that Obama just yesterday appointed the first cabinet members who will make up his economic team and has no real idea yet how to proceed.

The trial balloon offered in the NYT of simply passing every spending plan Obama promised on the campaign trail financed by several hundred billion dollars in debt makes no sense fiscally or economically unless one thinks that Peronism is a viable economic model.

Obviously, the inexperienced Mr. Obama needs as much transition time as he can get.

# posted by

Bart DePalma : 6:10 PM

Well let me point out that in this particular case, the transition might more accurately be described as an interegnum of eight years. The Bush "administration" has never been anything but a crime syndicate.

# posted by

Charles Gittings : 7:05 PM

Sandy Levinson said:

Every president has had bad qualities, but many, including, for that matter, Grant, Hoover, LBJ, and even Nixon, have had some good qualities as well.

Absolutely, which is why I specified the “worst” qualities. If not for Vietnam, LBJ would be recognized as a great President. He signed the Voting Rights Act, knowing what it would do to the Democratic Party in the South.

Grant had personal integrity, but made the mistake of assuming other people in his administration had the same quality. He also seemed to be out of his depth as President, perhaps because he wasn’t political enough. Notably, he failed in the peacetime Army, which I suspect was much more political than during the war.

Hoover was honest, and as President was an excellent mining engineer.

I am having trouble coming up with any good qualities for Bush. He’s been a screw-up his whole life, relied on his family name to get ahead, and reputedly has a sadistic streak that goes way back. The puzzle is why anyone thought he would be any different if he became President.

# posted by

Hank Gillette : 7:54 PM

I am in basic agreement with Hank, but even Bush, who I think is in fact the worst president in our entire history (in part because the domain of the modern presidency is so much vaster than was the case for almost all of his predecessors), could have been worse. His views on immigration, given the current mood, are relatively enlightened, and he never, either in Texas or in Washington, followed the urgings of the nativist wing of his party. And surely the appointments of Colin Powell and Condoleeza Rice helped prepare the public for the possibility of an Obama presidency.

Cheney is another matter. It is truly hard to think of anything one might want to say in mitigation of his genuine awfulness as VP and, if Bart Gellman is correct, de facto presidency over the past eight years.

# posted by

Sandy Levinson : 8:40 PM

Bad as I think Bush is -- and historical perspective may yet cause him to look still worse, depending on the depth of the economic crisis -- I find it hard to rate him below Buchanan or A. Johnson. The former did all he could to give us a civil war, the latter to restore white supremacy in the South. Those outcomes were SO awful that even Bush has a ways to go.

# posted by

Mark Field : 9:13 PM

The puzzle is why anyone thought he would be any different if he became President.

The qualities you listed were hardly seen as defects by the GOP establishment. The Republicans were interested in two things primarily: political skill and an eagerness to serve the wealthy.

# posted by

mattski : 11:07 PM

Let me second Mark Field. To anyone who says Bush is our worst President ever, I answer that Buchanan left some mighty small shoes to fill.

# posted by

Essayist-Laywer : 12:49 AM

Goodness, Sandy. We need to get you another paper to read.

Today's secret word is: VACUUM.
http://www.youtube.com/watch?v=7NTc4OyPHuY

# posted by

asgh : 10:57 PM

Mr. Obama is free to offer his plan to restore economic growth at any time to fill that vacuum. The fact is that Obama just yesterday appointed the first cabinet members who will make up his economic team and has no real idea yet how to proceed.

Boy, I'm guessing the announcement that he's releasing details about his budget plan today kinda embarrasses you.

# posted by

PMS_CC : 9:19 AM

Boy, I'm guessing the announcement that he's releasing details about his budget plan today kinda embarrasses you.

# posted by PMS_Chicago : 9:19 AM

Nothing appears to embarrass Bart.

# posted by

Bartbuster : 9:28 AM

There is a magnet in your heart that will attract true friends. That magnet is unselfishness, thinking of others first; when you learn to live for others, they will live for you.
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# posted by

Unknown : 2:07 PM