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]