Balkinization: Return to transition (and the theme of our defective Constitution)

Return to transition (and the theme of our defective Constitution)

Sandy Levinson

I received the following email from a reader of Balkinization:

During the lead-up to the election and after the election, you fulminated about the length of time between the election and the inaugeration. You pointed out, quite correctly, that Mr. Bush had the power but Mr. Obama had the country behind him. I have not yet gone back and checked, but I believe that you recommended that the period be shortened to less than a month.

[As an aside, in the small town (Cocoa Beach, Florida) in which I live, the City Commission elections are held on Tuesday and the new members take office on Thursday. A most satisfactory system indeed.]

However, having seen the problems which have befallen the new administration in terms of getting personnel chosen for the various positions and getting those persons, where necessary, confirmed by the Senate (not to mention the problems involved in getting the new personnel fitted into their offices), I wonder if you have changed your opinion on the time-lag.

It would appear that the process of preparing to take over the reins of government are simply too great to be completed in 2 1/2 months, much less one month. Further, imagine if the Senate had a Republican majority (or a Republican President and a Senate with a Democratic majority). How difficult would it be to get a reasonable team in place then?

I am curious as to whether your view has changed. I'm not sure that even with the Consititutional changes you advocate, a new president could be prepared to take over in a relatively short time.

This is obviously a fair question, and let me explain why I have not changed my mind (though I in fact believe that the problem is even more serious than originally addressed: [NOTE, PLEASE CLICK "CONTINUE READING" NOW INSTEAD OF READING FURTHER IMMEDIATELY BELOW]

The basic problem, obviously, is that the current system runs the genuine (and sometimes actualized) danger of depriving us of a genuine "government," in the sense of combining political legitimacy and legal authority, in times where we really need one. Nothing that happened between November 4 and January 20 lessened my concern. We are in the middle of the greatest economic crisis of at least the past 75 years, and we had no one truly able, in the sense I described, of speaking for the United States and being able to commit the United States to a policy. This is madness. Just consider what might have happened had we suffered a terrorist attack attributed to people living, in say, Pakistan or (considerably less likely) Iran. Indeed, the non-existence of any such attack at such an "obvious" time reinforces my fears that we may be considerably overestimating the dangers we face, though that is the topic for another posting and another thread.

So I haven't changed my mind at all with regard to the most fundamental problem. I presume that no one would draw from the present inability of the Obama Administration to place the required undersecretaries etc. in office the moral that we need to return to the "good old days" of a March 4 inauguration. Indeed, we are well beyond March 4, and I presume that only a lunatic would say that we really need, say, to wait until June 1 for the inauguration.

So we have to do two things. First, come up with an explanation for the delays in appointment and confirmation of needed people. Some of this may be Obama's fault, though recall Sen. McCain's idiotic criticism of Obama for being "arrogant' in thinking of a transition before his election. In fact, we should expect candidates to appoint their "transition teams" the day after their nominations and to be consulting with them throughout the campaign. That we don't is one of the dreadful features of our political system. But even if that rather modest reform were in place, there would still be very great problems. Begin with the fact that the president-elect has no legal authority to "nominate." All he/she can do is to announce an intention to nominate. Moreover, even if we allowed, somehow or other, a president-elect to engage in the performative legal utterance of "nominating" someone for a position, there would be the independent question of which senators, the lame-ducks or the newly elected ones, would consider the nominations. One of the other terrible features of our Constitution, about which I've changed my mind not at all, is the delay in installing newly-elected (or re-elected) senators and representatives in their office. Cocoa Beach is a fine model for the rest of the country, at least with regard to members of Congress.

Consider also a fine article published in the NYTimes by Paul Light, who knows more about such issues than anyone else in the world. He begins, altogether rightly, by questioning the increasing use by President Obama of non-comfired "czars" to handle important areas of public policy. This is just another manifestation of the "imperial presidency"--what I sometimes call "constitutional dictatorship"--that is part of our present political system. But then Light writes:

[West Virginia Sen. Robert Byrd, who complained about the "czars,"]] should also ask how the Senate has contributed to the czar-itis. The Senate has done virtually nothing, for example, to address the glacial pace of confirmations that often leads presidents to expand the White House staff as well as the number of appointees who serve without Senate approval. Although he has submitted the names of nominees to the Senate relatively quickly, President Obama will be lucky if the last of his nearly 500 full-time cabinet and subcabinet officers are confirmed by March 2010.

The confirmation process has grown slower with each passing administration and the Senate has resisted nearly every chance to accelerate it. In 2004, it rejected a long list of House-sponsored reforms that would have cut the red tape that strangles the process. It has said no to a long-overdue streamlining of the financial disclosure process and even refused to add much-needed staff to the White House Office of Presidential Personnel, which is drowning in résumés.

In repeatedly rejecting commonsense reforms, the Senate has merely strengthened the incentives that lead presidents to create policy czars in the first place. It has also encouraged the unabated growth of a de facto sub-cabinet composed of roughly 2,500 presidential “at will” appointees who serve without Senate confirmation. Most of President Obama’s cabinet secretaries, even before their confirmations, began filling their offices with chiefs of staff, deputy chiefs of staff, special assistants and confidential advisers, none of whom are accountable to the Senate....

If Mr. Byrd wants to restore Senate confirmation as the coin of the realm, he need only ask Senators John McCain, Republican of Arizona, and Russell Feingold, Democrat of Wisconsin, to reintroduce their long forgotten 1990s legislation cutting the number of at-will political appointees by a third. He should also press for an amendment to Senate rules that sets clear deadlines for bringing nominees to the floor for a vote.

Mr. Byrd should also ask the House for a copy of its 2004 reforms. At least half of the delays in the presidential appointments process appear to involve bureaucratic red tape and duplication of effort, while a quarter appear to reflect the rising and inappropriate use of personal holds by the senators to extract concessions from the president and fellow legislators.

There will always be legitimate reasons for questioning the president’s nominees as the Senate discharges its constitutional duty to give advice and consent. But before criticizing the Obama administration for overreaching, Mr. Byrd should take a harder look at his own branch of government. There is plenty of room for reform in the Senate, too.

The awful truth is that the United States Senate disserves us in many ways: Read Mann and Ornstein's "The Broken Branch," and there is no reason to believe that it is functioning much better under the "leadership" of Harry Reid than formerly, not least because the Senate, for example, still allows individual senators to place "holds" on nominations (the latest scandalous example apparently being attempts to block confirmation of the extraordinarily meritorious appointment of Dawn Johnson to head the OLC). Much of its awfulness comes directly from the Constitution, some, like the use of the filibuster only indirectly (i.e., the ability of each House to set its own rules, including indefensibly anti-democratic ones).

There is also the independent issue of the ever-more-onerous "vetting" that is required of any candidate for public service. A great deal of time, apparently, is expended on crazy FBI checks in which neighbors from long ago are asked to testify to the good character of a nominee.

The United States political system is truly dinosaur-like. We are increasingly in a tar pit, and there is, alas, no good reason to believe that we will escape. This is not to saya that any other country necessarily has a better system (though I believe that some do). Rather, it is to continue to hearfelt denunication of my fellow citizens for failing even to treat these questions as worthy of discussion. We are talking about radical transformation of the banking industry, of GM, etc., because of the correct perception that old structures are proving disastrous in the 21st century. But we continue to believe, insanely, that what was done in 1787 is just fine. If James Madison had dictated that GM manufacture Chevrolets, Buicks, Pontiacs, Cadillacs, and Oldsmobiles unto eternity, then Antonin Scalia and his friends would be saying that it just has to keep doing that, come what may. If you believe that approach to General Motors would be almost literally crazy, then ask yourself why "veneration" for the forms bequeathed us by Madison and his friends is any less problematic.

Incidentally, reflect on Pres. Obama's comment that it was time for the president of GM to go, in order to provide more imaginative leadership (or simply reflect on the firing of coaches and managers, sometimes in mid-season, because of their perceived inadequacies). I certainly don't have the information to know whether Obama is correct or not, but would anyone say that the present management of GM should remain even if, by stipulation, they are inadequate? Only the President of the United States is free from any similar judgments as to inadquacy short of relection (or doing us the favor of committing a criminal offense with a "smoking gun"). Perhaps it's true that "what's good for GM would be good for the US" (i.e., trying genuinely to reform a sclerotic and dinosaur-like corporation instead of feeling stuck with what we've got, come what may).

End of screed. I hope this counts as an answer to the very legitimate question posted above.

Posted 11:57 AM by Sandy Levinson [link]

Comments:

Your post reminds me of the following line from David Currie's The Constitution in Congress series: "One of the central lessons of the tortuous birth of the twelth amendment is that constitutional changes are seldom so simple as they seem; displace a single brick and you may end up rebuilding the entire facade."

# posted by

mls : 1:49 PM

The confirmation process does delay the process.

But, even taking that into consideration (ignoring the problems of certain troublesome vetting issues that simply can't be blamed on that), blaming the delay on the Senate simply does not do it.

It takes time to set up shop and some vetting by the confirming branch IS a necessary check in a sound system. Two months or so is simply not an exaggerated time for this to take.

# posted by

Joe : 1:50 PM

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# posted by

Joe : 1:54 PM

I agree (again) with Levinson's screed!

# posted by

Charles : 2:51 PM

Sandy:

How about a compromise operating on the incentive system? The President elect may take office when he or she can offer a slate of nominees to fill the cabinet.

I personally would also require that the nominees be able to qualify for a security clearance, pass a criminal background check and have paid all of their taxes for the prior five years like a spanking new military officer. However, if that were the case, Mr. Bush might still be President.

;^)

# posted by

Bart DePalma : 3:15 PM

However, if that were the case, Mr. Bush might still be President.

Baghdad, it's nice that you were able to debunk your own idea so no onw else has to waste any time on it.

# posted by

Bartbuster : 3:31 PM

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# posted by

Charles : 3:34 PM

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# posted by

Charles : 3:38 PM

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# posted by

Charles : 3:44 PM

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# posted by

Charles : 4:14 PM

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# posted by

Charles : 4:27 PM

Prof Levinson:

Really, this isn't a Constitutional problem, is it? Congress could pass a "new administration" act, allowing the President to appoint people on a temporary acting basis, and confirm ex post. Or, do a kinda Congressional Review Act thing to appointments, with a default approval and only a joint resolution forcing a hearing and confirmation?

# posted by

nerpzillicus : 5:07 PM

Abandon vetting. Most democracies do not use it and it largely serves as a proxy for policy disputes anyway.

Kevin Rudd was elected prime minister of Australia on 24 November 2007. His entire ministry were sworn in, without vetting, on 2 December 2007. The members of the shadow cabinet (Rudd was in opposition before the election) were well-known to the electorate and the parliament and in most cases had been shadow ministers for the portfolios to which they were appointed, indeed Julia Gillard, the current deputy prime minister, was the target of government attack ads in the last week of the campaign.

If a cabinet appointee is later found to have a probity problem they end up resigning or being dismissed. The prime minister gets held to account for their appointments.

Admittedly the ministry does not include anything like the number of appointments a US president must make and ministerial appointments do not require legislative approval, but vetting is highly selective and not very effective at winnowing out bad appointments. I've always wondered why US presidents do ot use temporary appointments to at least get their cabinets working as soon as they take office.

# posted by

Alan : 5:15 PM

Alan:

You mean "policy disputes" such as whether some Democrats have to pay back taxes or not?

# posted by

Charles : 5:39 PM

I appreciate the point that the "transition" might not be a constitutional problem in the same sense that, say, inauguration day per se is generated quite directly by the Constitution. The Senate could, presumably, change its own institutional practices to allow a more efficacious transition. But, obviously, there appears to be no impulse to do so. My real point is that we have a seriously dysfunctional political system, some of it "directly" generated by the Constitution, some of it only "indirectly" so, as by the ability of the House and Senate to make its own rules of operation, whatever their cost to the public weal.

The debate about the gender of the President is simply silly and deserves no space on the thread. It's like arguing that the Air Force is unconstitutional because the Constitution speaks only of the army and navy. Adults should have better things to do with their time than debate such issues.

# posted by

Sandy Levinson : 5:45 PM

Fine. I won't bring it up again (although people thought your comparison of Gillibrand and Yoo on the previous thread was "silly" too).

# posted by

Charles : 5:56 PM

@Charles

Some Bush appointees withdrew over back taxes, so no I am not saying policy disputes mean that either Republicans or Democrats should be exempt from back taxes. Nor am I suggesting that appointees who represent Wall St should be exempt from back taxes but other appointees should not. Given the fluidity of the back tax principle, gee , it really sounds like back tax vetting may be a proxy for something else...

# posted by

Alan : 6:07 PM

OK, Alan. Thanks for the clarification.

# posted by

Charles : 6:18 PM

Also, the Obama nominee tax problems were several orders of magnitude bigger than Bush. I recall that Linda Chavez withdrew as Labor Secretary, but that was regarding her employment of an illegal immigrant. You aren't referring to previous Treasury Secretary, Paul O'Neill, are you? He amended his tax returns and agreed to pay a nominal sum of $92 to cover the tax that would have been owed had $150 in "gift" payments to a part-time housekeeper been recorded as employee wages instead.

At the time, Senators Max Baucus of Montana and Charles E. Grassley of Iowa, the senior Democrat and Republican on the Senate Finance Committee, wrote to Mr. O'Neill to suggest that he review the matter.

''While not every transfer from an employer to an employee is taxable, the presumption is that a cash gift from an employer to an employee is wage income subject to taxes,'' the letter said.

Mr. O'Neill wrote to the senators today, repeating that he considered the payments gifts but agreeing to amend his tax return for the three years as a precaution.

''I want to remove any question that may exist regarding my compliance with federal law,'' he wrote. He also said he was reviewing tax returns for the years before 1997.

Senators Baucus and Grassley issued a joint statement today calling the tax revisions a ''minor incident which will in no way impede Mr. O'Neill's confirmation.''

In his financial disclosure forms, Mr. O'Neill, the recently retired chairman of Alcoa, the large aluminum manufacturer, reported $59.2 million in compensation from Alcoa in 2000. The form also shows that Mr. O'Neill has financial assets worth more than $60 million, much of it in Alcoa stock.

http://www.nytimes.com/2001/01/20/us/transition-washington-treasury-department-bush-choice-pay-taxes-wages-for.html?fta=y&scp=1&sq=bush%20choice%20to%20pay%20taxes&st=cse

# posted by

Charles : 6:32 PM

I am not completely sure how arguing that one set of tax problems do not count but another set do supports the argument that vetting is not a proxy for policy disputes. Indeed, to the extent that you are minimising the tax failures of one set of nominees and maximising the tax problems of another set you are confirming my thesis.

# posted by

Alan : 6:38 PM

I believe you meant to say de minimising re: $92. So, no, that does not confirm any such thesis. One is an actual tax PROBLEM while the other isn't.

# posted by

Charles : 6:49 PM

Fast forward 8 years:

Tim Geithner fails to pay $34,000 (that's $33,908 more than Paul) and Obama says it was an "innocent mistake". Sen. Max Baucus, the Montana Democrat who sent that letter to Paul O'Neill, all of a sudden agrees: "It's an honest mistake," adding that Geithner's confirmation was "a given."

http://www.msnbc.msn.com/id/28642237/

As you know, Daschle and others were not so lucky later.

# posted by

Charles : 7:00 PM

Congress has ranking members, and party transitions there take place smoothly, albeit with spoils-related bloodletting. Assuming that the old ranking member hasn't moved on to a new committee, the Minority Counsel or Staff Director becomes the Majority Counsel or Staff Director, and vice versa.

But executive transitions are different. We have no shadow executive; as of noon on inauguration day, we have nothing (except for post-9/11 legislation explicitly recognizing the transition in Homeland Security and recognizing the President Elect as having the right to get security clearances for his nominees). We don't have party, parliamentary government like Britain and its related polities. We can look at posts like Attorney General, Secretary of Agriculture and Secretary of Interior and see numerous recent occasions on which the Executive was not in agreement with the Chairmen of the committees of jurisdiction.

As for czars and presidential staff, this is merely an expression of the failure of cabinet government in this country. Government does a myriad of things, far too many for the president to know or worry about, so all of them have to be done under the direction of a presidential nominee approved by the Senate. Either we elevate small functions to cabinet level to signify their symbolic importance (Dept of Veterans Affairs) or we combine dissimilar functions for reasons of historical accident (look at the agencies comprising the Commerce Department) (and then we get idiot cabinet secretaries who follow inapposite private-industry branding standards, so we get slogans like One Agency, referring to the Department of Health & Human Services (note the & signifying two-thing-ism)).

So czars make perfect sense, they overcome the presidential fear of department heads being "captured" by their civil service employees (formerly known as listening to people with actual experience) and they make other presidential appointees play well together (inter-agency actions are quickly crippled by the internal politics of budget, staff, facilities). If Bush wants separate National Security Councils and Homeland Security Councils, let him have them; if Obama wants a single council with core and non-core members, so be it. At least it is done up front, as opposed to through the OMB (although I am sure Obama is or will soon be using that power as much as Clinton, Bush, Reagan or Nixon).

When the people have voted for a change, as in the last election, there is necessarily a discontinuity, a period during which the old government has no basis upon which to undertake new policy and the new government has no authority to do so. (This is much less the case when there is no change of person or party.) But at least we have abandoned a spoils system (which still obtains in many countries) in which every office down to postmaster or hospital director or wharfmaster changes.

# posted by

Anonymous : 7:13 PM

“My real point is that we have a seriously dysfunctional political system, some of it "directly" generated by the Constitution, some of it only "indirectly" so, as by the ability of the House and Senate to make its own rules of operation, whatever their cost to the public weal.”

Who would you suggest make the rules for the House and Senate?

# posted by

mls : 7:56 PM

Alan:

http://www.washingtonpost.com/wp-dyn/content/article/2009/03/31/AR2009033103219.html?hpid=artslot

Yet another one bites the IRS dust (note Max Baucus's hypocrisy again). To whom were you referring to re: "Some Bush appointees withdrew over back taxes"? Because I haven't found any. Maybe you were referring to Bush41?

# posted by

Charles : 8:40 PM

But the president isn't "elected" in November. Electors are elected. You have to at least address the need for recounts, etc. and then they new legislature has to be in office before they can count the electoral votes and maybe handle the issues of ties, death of an elected candidate, etc.

If you give up on the electoral collage, then you have to account for the possibility of a nationwide recount for a close election and the potential death or disability or unfitness for office which might take place after the initial vote.

These are big technical issues, and the electoral college minimizes the potential disorder if everything doesn't go as planned.

The presidency is unlike all other elected offices, there must be non-democratic means to guarantee that we always have a legitimate president. A simple popular election doesn't do it.

# posted by

rmadilo : 9:01 PM

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# posted by

Joe : 9:05 PM

rmadilo also underlines that the official date won't be November, but later. The "transition" gets smaller and smaller. The post focuses on the Senate. Telling.

# posted by

Joe : 9:09 PM

I've always wondered why US presidents do ot use temporary appointments to at least get their cabinets working as soon as they take office.

Temporary appointments are only possible during Senate recesses. Art. II, Sec. 2, cl. 3.

I've made plenty of comments on this issue in the past so I'll leave it at that for now.

# posted by

Mark Field : 10:31 PM

Re: Graber's car / Constitution analogy, I would be fine foregoing "servicing" as long as liberal activist car-jacking was kept to a minimum. Maybe we could get some sort of Lojack early warning system installed? Anything would be better than allowing Obama to take it into a chop shop.

# posted by

Charles : 11:57 PM

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# posted by

I2carts : 1:35 AM

Alan is dubious about vetting.

I think is useful to have some time for private and public (this includes the press) vetting. Bill Richardson and Tom Daschle (more so the latter) had problems that went beyond partisan wrangling. Tim Geitner also. Some on the left were wary about the guy. Other examples do arise.

Alan underlines, ditto mls' bricks, that other nations have workable systems, but the systems are different. I'm unsure if SL doesn't want some vetting body, for instance. If so, it is logical for the new Senate (whatever its form) to do so. When does the new Congress come in?

The different systems also point to how removal is different, including in a more political/populist/federalist system. Discussing these issues, not just the problems of our system (in harsh terms), would be useful.

There is also the lame duck issue that SL was concerned about. We have seen that confirmation of the vote pushes this back. But, it would exist either way. New gov't starts in December? A term limited President is a lame duck long before then. What if a war starts in September?

SL raises important questions, but I find he doesn't go far enough to address the hard choices involved. BTW, I'm glad Prof. Koh, whose work I have read somewhat, is being defended. By some shy guest commentator.

# posted by

Joe : 11:05 AM

Said "shy" guest commentator (Kenji Yoshino) asks important questions but fails to permit for answers / comments . . .

# posted by

Charles : 11:09 AM

Somewhat off topic, the "financial disclosure process" brings to mind the Oyez.com website. It is new and improved and its profiles of justices include their financial disclosure forms.

RF's defense of the "czar" system is also interesting. BTW, we can agree on some things here. With a long (too long for many) interregnum, there is a lot of time to set into place personnel.

# posted by

Joe : 11:12 AM