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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 The high cost of denial (that we have a deficient Constitution)
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Saturday, December 06, 2008
The high cost of denial (that we have a deficient Constitution)
Sandy Levinson
One of the lead stories in this morning's New York Times begins by noting the loss of 553,000 jobs last month. "Not since December 1974, toward the end of a severe recession, have so many jobs disappeared in a single month — and the current recession, far from ending, appears to be just gathering steam." There seems to be general agreement, even among Republican economists, that a very strong stimulus package is necessary. My interest was piqued primarily by the following paragraphs from the linked story: Despite the deterioration of the labor market, Democrats in Congress and a lame-duck president remain in a standoff over rescue measures. At its core, the stalemate between the Republicans and the Democrats springs from fundamentally different views about the nature of the crisis and the role of government in resolving it. The White House contends that it has rightly focused on the credit and housing markets, while the Democrats see economic problems that can be resolved only through broader intervention. New efforts to adopt a broad economic package are likely to wait until the new president takes office and Democrats have bigger majorities in Congress. That delay poses the possibility of a deeper recession, according to some experts. President Bush, appearing in front of cameras on Friday morning at the White House, said he was “concerned about our workers who have lost jobs.” But he offered no hint of softening his opposition to either a stimulus package or a bailout of the automobile industry, saying that the measures already put in place by the Treasury Department and the Federal Reserve to ease credit problems would take time to work. Shortly after his appearance, a White House spokesman, Scott Stanzel, dashed any expectation of a change in policy when he said that officials expected a stimulus package would “happen in the next administration.”
Comments:
Bush retains the power to veto emergency economic legislation, and he has legal authority over the administration of the TARP. Presumably, at the present juncture, it is only with respect to the use of the former that his stance may well be in direct conflict with Obama's.
How likely is it that Bush would veto emergency economic legislation that was strongly supported by the president-elect?
Sandy, can you tell about the economic models that cause you this constitutional concern? What sort of stimulus measures would the new Congress adopt in early January, and what effect would the delay from January 6 to January 20 have? I mean, I understand that Obama favors a plan for infrastructure spending and tax cuts, along with handouts for favored industries employing political contributors, which will, in general, take months or years to disperse. Is this just a case of your ignorance of economics and the actual policies being proposed becoming another excuse for complaining about the constitution?
As for the "dung" left by the current administration, perhaps the American consumers' crisis of confidence is more directly linked to the concerted effort by Democrats to create exactly that? Obama as much as anyone caused this, and as of January 20, he will own it.
Ok, lets try this another way. Since the economic crisis is a global one, can you point to another country where the response to the crisis has been more effective? Such evidence might actually persuade someone that our problems relate to these alleged constitutional deficiiencies.
BTW, if you have been following political events in Canda, you might note that the parliamentary system seems to have some glitches of tis own.
My argument is not that if we had a better Constitution, then everything would be just ginger-peachy. Obviously, this is a world-wide crisis, enveloping every known political system. My only argument, but I don't think it is a trivial one, is that no rational person could believe that we are helped by having a Constitution that generates a) the long hiatus between the repudiation of an incumbent president and the inauguration of his successor and b) though probably less important, the ability of lameducks to play such a potentially negative role in the Senate.
pinkerd asks "How likely is it that Bush would veto emergency economic legislation that was strongly supported by the president-elect?" The only honest answer is I don't know. Let's try another question: How likely is it that Bush will put pressure on Republican senators, even in the next three weeks, to cooperate with Democrats in achieving a reasonable bailout program for the auto industry and beginning the stimulus ASAP? If we had a different political system, we wouldn't have to ask such questions and fear the consequences of a "wrong" answer. If Thomas really believes that Obama has "caused" the crisis of confidence in our economic system, then we simply live on different intellectual (and causal) planets. I may be ignorant of economics, but surely no more so than the current President of the United States, which is surely more relevant.
Since the economic crisis is a global one, can you point to another country where the response to the crisis has been more effective? Such evidence might actually persuade someone that our problems relate to these alleged constitutional deficiiencies.
As Prof. Levinson noted, this question has nothing to do with his point about the transition. But since you ask... From what I can tell reading various economic blogs, the "gold standard" for a response to a somewhat similar crisis was that of Sweden in 1992.
Yes, Sandy, Obama and other Democrats have as much as anyone caused the American consumer's crisis of confidence, which is accelerating the damage done by the housing deflation and the financial crisis. If you tell people that they're in a depression, some percentage of them will believe you and act accordingly. They'll close their wallets. And lots of people will lose their jobs as a direct consequence.
In your response you continue to assert that there's a "wrong answer" on the question of when the stimulus will begin. Again, what do you base that on? Is there any suggestion anywhere that two weeks or six weeks difference in the timing of the stimulus will make any difference? (The answer, Sandy, is no.) Do you get advice from Bernanke? Bush does. He can't help but be less ignorant than you, on this subject at least.
The economic advice I see generally has been of the "start the stimulus yesterday" variety. This is true of Roubini, Thoma, DeLong, Krugman, and many others. Think of it as like turning around an ocean liner -- the inertia in the system means that every day's delay makes the eventual recovery that much harder.
Thomas's last paragraph seems to assume facts not in evidence. But it wouldn't matter if God Himself were giving advice to Bush -- he could neither understand it nor follow it. If Bernanke is giving advice to the White House, he'd be better off petting Barney.
Sandy asks the following: "How likely is it that Bush will put pressure on Republican senators, even in the next three weeks, to cooperate with Democrats in achieving a reasonable bailout program for the auto industry and beginning the stimulus ASAP?"
It is not likely at all. But, at this juncture, what leverage does Bush have over Republican senators in connection with economic legislation? Bush's authority (legal and/or moral) with respect to the economy just doesn't carry the weight that Sandy ascribes to it.
While the left may be salivating at the prospect of increasing the size of government by 25% in the name of "stimulus," the reality is that increased government spending on infrastructure and new entitlements has never lifted the nation out of a recession. Indeed, the last time government spending on infrastructure and entitlements was increased to the extent Obama proposes was the New Deal failure during the decade long Depression.
It will be very interesting to see if all of those new Dems elected to Congress in 2006 and 2008 campaigning as fiscal conservatives and often openly hostile to the bank bailout will buy off on New Deal II next year. If so, then this transition delay in this experiment in Peronism was a blessing to the taxpayers.
Mark- I have also heard Sweden held out as a model of successful response to a banking crisis, in comparison to Japan’s unsuccessful response. As far as I know, no one is claiming that this difference relates to constitutional structure.
With regard to my question about how other countries are responding to the current crisis, it seems to me that the question is very pertinent to whether or not our constitutional system is in some sense the “cause” of inadequacies in our response. Of course, one might agree in the abstract that any presidential transition poses risks since we are talking about a massive changeover in government policy and personnel. Some of these risks may correlate positively with the length of the formal transition period and some of them may correlate negatively. We can debate whether a shorter (or longer) transition period would be a better way of minimizing the risks, but unless one proposes to minimize presidential transitions by, say, electing presidents for life, I don’t see that this has much to do with constitutional structure at all. With regard to whether this particular presidential transition is adversely affecting our response to the economic crisis, I think it is important to distinguish specific policy initiatives from the more intangible issue of public confidence about economic conditions and leadership. The latter, I believe, has suffered as a result of the timing of the economic crisis vis a vis the election and transition, and particularly due to (a) the fact that the Bush Administration long ago lost the public’s trust and (b) substantial uncertainty about Obama’s intentions and abilities. In fairness, Bush seems to recognize and accept the fact that his highest and best use at this point is to ensure a cooperative and successful transition, and has largely left economic policy to Bernanke and Paulson, while leaving the public stage more or less to Obama. As for Obama, he was initially somewhat slow in filling the leadership vacuum, but at this point I would have to say that he is moving with deliberate speed. As far as actual economic policy is concerned, how would it be any different if Obama and the new Congress had taken office on November 5? With regard to the administration of the TARP, I don’t see any reason to believe that it would be different. With regard to the auto bailout, I suspect that the policy we will end up with will not be much different than it would have been. With regard to the stimulus package, would the new Congress have been able to agree on and pass a bill and get it signed before January 20, which appears to be the current target date? It takes time to reach agreement on the size and scope of the package. As far as I know, neither Obama nor the congressional leadership has reached a decision on these questions to date, much less obtained enough votes to pass it. There is no evidence that the Democrats have even tried to put together a bill that might be signed in the current Congress. Even in the new Congress, there will still be enough Republicans to filibuster in the Senate, even once all the vacant seats (and potentially vacant seats in the case of Senator Clinton) are filled. Frankly, I think the Democrats will be lucky to get the bill signed by January 20. Of course, all of this is separate from the question of whether the stimulus package is actually a good idea, which I rather doubt.
I have also heard Sweden held out as a model of successful response to a banking crisis, in comparison to Japan’s unsuccessful response. As far as I know, no one is claiming that this difference relates to constitutional structure.
Nor am I, though I have no idea how the structure of the government -- at least within the limits of parliamentary v. presidential democracies -- could be shown to affect the response. With regard to my question about how other countries are responding to the current crisis, it seems to me that the question is very pertinent to whether or not our constitutional system is in some sense the “cause” of inadequacies in our response. I think the specific issue here is a little more resolvable. That is, can we say that the length of the transition, alone is affecting the response? It's hard to see how that could fail to be true. There seems to be little doubt that the Obama team would have and try to implement different ideas. If it were already in place, then I'd expect to see a change in at least some policies. We won't have a good sense of just how different, and just how important the delay is until events play out. We do know, though, that two previous transitions in times of significant crisis (Lincoln and FDR) played out very badly and that conditions grew much worse due to the delay. As far as the time to put together a bill goes, we need to consider a variety of factors. The most important is that, speaking generally, shortening the transition period would necessarily change the entire set of expectations and behavior. Congress and president would perforce become ready to take over sooner and to act more quickly, in general. As far as this specific situation is concerned, it's nearly impossible to say. We do know, though, that if it takes X weeks to put together a package once the new Congress is in place, the delay in transition guarantees it will take X+6 weeks.
thanks so much i like very so much your post
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