"I think we have to blow up the place"

Sandy Levinson

So who said this, with regard to the United States Senate? The answer, some of you may be surprised to learn, is retiring Senator George Voinovich of Ohio. I, of course, regret his entirely intemperate language, and I assume that he has immediately been placed on a list that will bar him from flying to Washington. Still, what does it say about our current political situation that a relatively well-respected senator like Voinovich (he's far too conservative for my taste, but he's not been one of the Senate's mad dogs, a development he attributes, incidentally, to the increasing number of former House members who have come over to the Senate), that he can say this even in presumed jest? And, even more, what does it say that he describes himself as having been to behave like a "real Senator" only in the past two years, i.e., since he announced that he wasn't running for re-election? We don't need to "blow it up." Abolishing the Senate (or restricting its role to confirming ambassadors) would suffice.
Posted 8:50 PM by Sandy Levinson [link] (8) comments

Wikileaks, Neoliberalism, and American Decline

Frank Pasquale

The flood of revelations from Wikileaks raises some difficult questions about data security and government secrecy. Some privacy activists might enjoy seeing technology "turn the tables" on a national surveillance state, exposing its secrets as indiscriminately as programs like warrantless wiretapping gathered up citizens' data. But retaliation is inevitable: just as the shoe-bomber provoked new TSA rituals, those who want more surveillance of the internet will point to the leaked cables. As Ross Douthat argues, "WikiLeaks is at best a temporary victory for transparency, and it’s likely to spur the further insulation of the permanent state from scrutiny, accountability or even self-knowledge." We can expect more security initiatives, more indiscriminate classification of documents, and perhaps even more undocumented communications about critical issues.

The discussion of Wikileaks tends to focus on either process (can government officials still communicate securely?) or substance (what do particular cables reveal about American policy?). Those two conversations ought to converge. As Felix Stalder notes, policy promoting an "Information Sharing Environment" may well have created the conditions for this breach:
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Posted 9:34 PM by Frank Pasquale [link]

How to Remember Pearl Harbor

Mary L. Dudziak

On December 7, the nation will remember the 1941 Japanese attack on Pearl Harbor as the beginning of World War II.  What happened in the U.S. territory of Hawaii that day was not the beginning of American involvement in World War II, however.  And Japan, on her own, did not bomb Pearl Harbor into American memory.  Instead, President Franklin D. Roosevelt, in his dramatic address the next day, honed the nation’s attention on the Hawaii attack, and away from simultaneous Japanese military strikes throughout the Pacific.  Pearl Harbor would come to be remembered as a decontextualized attack on America, as the nation was thrown, by the acts of another, quickly into the war.      

Remembering Pearl Harbor as the beginning of World War II, and seeing the war as captured between the bookends of December 7 and the Japanese surrender, reinforces a set of ideas about “wartime,” (critiqued here) in which “real” wars are exceptional and confined in time.  World War II is often regarded as the last time in U.S. history that war powers were properly contained within a formally declared war, but instead the war illustrates an enduring dynamic: the use of war-related powers beyond the terms of a declared war.       

In light of the way Pearl Harbor is remembered, it is jarring to read an entry in U.S. Secretary of War Henry Stimson’s diary about December 7, 1941:  “When the news first came that Japan had attacked us, my first feeling was of relief that the indecision was over and that a crisis had come in a way which would unite all our people.”  (Post continues...)
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Posted 5:37 PM by Mary L. Dudziak [link] (4) comments

Declaring a Payroll Tax Holiday

JB

My advice to Barack Obama:

1. Let the Bush tax cuts expire.

2. Declare a payroll tax holiday for Tax Years 2011 and 2012, featuring cuts in the amount of payroll tax the federal government will correct.

Instruct the Treasury Department to collect less than the current amount of the payroll tax and/or give everyone who pays the payroll tax a tax refund.

Instruct the Treasury Department to issue new regulations justifying the payroll tax holiday.

Instruct the IRS not to prosecute employers who deduct only the amount required under the terms of the payroll tax holiday.

3. Tell the Congress that the payroll tax holiday will continue until Congress passes a tax reform bill to the President's liking.

4. Tell the Republicans that he is sick and tired of their misusing the political process to benefit rich people and that the best way out of the current economic mess is to put money in the hands of hard working Americans who need tax relief and are most likely to spend it. Note that the payroll tax holiday is as necessary to the country's economic recovery as FDR's bank holiday was during the Great Depression.

5. Insist that it is the President's duty to take bold action in times of economic emergency and berate the Republicans for playing games with the lives of ordinary citizens.

6. When members of Congress sue to declare the tax holiday unconstitutional:

(a) argue that they lack standing.
(b) argue that the holiday is justified by the new Treasury Department regulations.
(c) argue that the interpretation of the tax laws in the new regulations is committed to the President under Chevron.
(d) argue that the President, as chief executive officer, has the discretion to refuse to prosecute individuals in the interests of public policy. To interfere with the President's (non)prosecution power violates the Unitary Executive.
(e) Drag out the litigation until 2012, when it will be clear that the payroll tax holiday has helped improve the economy.

6. Rinse and Repeat.

The danger of Obama declaring a tax holiday (akin to FDR's bank holiday) is that some future Republican President will declare a tax holiday for corporations. Make no mistake: giving the President the power unilaterally to lower particular people's taxes gives the Chief Executive possibilities for all sorts of mischief.

The interesting question, however, is why under Republican Reagan and Bush era theories of the Unitary Executive, the President cannot declare a tax holiday.

And the second interesting question is why the President should not at the very least make a credible threat to adopt this approach in order to break the Republican Party's current stranglehold over tax and fiscal policy.

Discuss.

What is this blog post about? In one respect it is a proposal for what Barack Obama should do about tax and fiscal policy. In another respect, however, it is a post about how constitutional conventions work and how actors in constitutional systems try to alter existing conventions for their electoral benefit, a practice that Mark Tushnet has called "constitutional hardball."

This post is about how actors in a constitutional system should respond when they feel that other actors have violated unspoken norms in a constitutional system and are playing constitutional hardball. In this case, the Republicans are acting like a European style parliamentary party in a presidential system, and they have manipulated the rules of the Senate to gain an unfair advantage, at least in the view of the Democrats.

The lesson of this post is that when your opponents engage in constitutional hardball in order to get their way, the correct response is not to wring your hands and urge them to play fair by the old rules. They are trying to change the rules; they are doing so because they believe it gives them an electoral or political advantage.

Rather, the correct response to constitutional hardball of this sort is to engage in constitutional hardball of your own, in order to make the other side come to the bargaining table and agree to a new set of understandings about how the game of politics is to be played.

The threat of a payroll tax holiday is designed to say to the Republicans: if you want to play constitutional hardball in order to ensure that you gain seats in 2012, I will play constitutional hardball in order to prevent you from taking advantage of me. If you want me to stop, then meet me at the bargaining table. Otherwise, the rules of politics have changed, and you'd better get used to it, just as you changed the rules, and told me to get used to it. If you don't like these new rules, then back down from the new rules you are trying to impose on me and the rest of the country.

The President will not get Congressional Republicans to negotiate until he gives them a strong reason to negotiate.
Posted 4:42 PM by JB [link]

Bipartisanship

Gerard N. Magliocca

I wanted to add an observation to Jack's post from the other day about the need for Senate reform and the evolution of parliamentary parties in a presidential system.
Posted 9:49 AM by Gerard N. Magliocca [link]

Twenty Eight Percent

Andrew Koppelman

With Illinois’s passage of the civil unions bill, more than a quarter of the population of the United States – to be precise, a bit over 28% - now lives in a jurisdiction that recognizes same-sex marriage or its functional equivalent. It is only a bit over a decade since the Vermont Supreme Court ruled on December 20, 1999 that same-sex couples have the right to all the same rights and benefits as opposite-sex spouses. The same-sex marriage movement continues to be one of the most rapidly successful movements in American history.

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Posted 6:03 PM by Andrew Koppelman [link]

"Bill for Raising Revenue" bleg

Mark Tushnet

Someone originated the idea that the Senate's version of the food safety bill might be unconstitutional (presumably if adopted without change by the House) because it contains some revenue-raising provisions. That, it's been said, violates the Origination Clause, which provides that all bills for raising revenue must originate in the House. The case law gives an extremely narrow reading of the term "bill for raising revenue," and the Constitution also allows the Senate to "propose amendments as on other bills." (A revenue-raising provision that's incidental to a regulatory program, for example, is not a "bill for raising revenue" under precedents dating from 1887 to 1990. And, it's apparently the accepted wisdom that if a bill for raising revenue originates in the House, the Senate can amend the bill by striking everything after the "Be it hereby enacted" and substituting its own revenue-raising provisions.)
Posted 11:22 PM by Mark Tushnet [link]

What the President is Willing to Fight For

Frank Pasquale

Mike Konczal is one of the best finance bloggers, and has an unerring sense of the political realities behind fiscal reforms. He offers this perspective on the recent announcement of a federal pay freeze:

Ezra Klein has three ways of looking at the freeze. . . . . 1) This is more unwise, unilateral bipartisanship, 2) This is a smart way to protect the federal workforce, 3) This is bad economics and bad policy. I think we should discuss a fourth option: President Obama thinks this is a really good idea and wants to spend political capital and energy to carry it out.

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Posted 10:59 AM by Frank Pasquale [link]