Balkinization: Life in a constitutional dictatorship (Again)

Comments:

Sandy:

The Obama Administration has a very long history of both ignoring the law and seeking to destroy individuals who get in their way starting with the abuse of the bankruptcy process to loot the Chrysler and General Motors secured creditors standing in the way of nationalization to any number of threats HHS Secretary has made and carried out against insurers or opponents of Obamacare.

Why Obama's decision to ignore the WPR because it was in his way or nail a whistleblower for embarrassing the his NSA is any surprise after all these years of what the normally sober Michael Barone calls "Gangster Government" is a bit puzzling.

Sandy, come on and join us in the Tea Party.

# posted by

Bart DePalma : 1:43 PM

The "deep structures" are not just political. They are not even primarily political. They are, in the first instance, economic. You cannot have full political democracy in the absence of economic democracy. As long as basic decisions about investment, production and distribution are made by and for one class (hiding behind the facade of the "market mechanism"), rather by and for everyone, government will be the captive of that ruling class.

But I agree with the main point here. It's the "deep structures" that matter, not who won the last election.

# posted by

Bob Richard : 1:53 PM

This comment has been removed by the author.

# posted by

Shag from Brookline : 2:45 PM

Sandy, unfortunately it is quite rare, especially since WW II, for a succeeding administration to truly repudiate a prior administration (or administrations) with respect to national security, regardless of party affiliation. Since the requirement of presenting a National Security Strategy, differences have not been that significant. Many of us expected more from Obama. If Madison were around today, one could only guess what he might say or do based upon his experiences compared to today's more complicated situation. Actions of prior administrations can serve as handcuffs and politics limits efforts to unlock them. "Deep structures" include: State, Defense and Treasury Departments and the CIA (among others).

You make valid points with this post that should be pursued. But I would recommend that you decline the invitation for tea.

# posted by

Shag from Brookline : 2:47 PM

"a true repudiation of the Bush Administration, but, rather, a (somewhat) kindler and gentler version of its claims"

Yes, that's why many Republicans voted for him. As with those so shocked at Bush (he seemed such a moderate sort!), this really isn't a surprise. I think you and Prof. Balkin predicted this years back anyways.

Bush had a lot on his plate with 9/11, Afghanistan, Iraq, setting up torture rules etc. Obama has less mega-issues (at least to start at scratch) so can use the expanded executive power already in place.

Libya isn't Iraq -- that is, it is more of a sideshow. I question if Bush would have handled that differently. As to leaks, Mayer says five prosecutions, two hold overs. This is a pretty small sample. As to whistleblowers, we have whistleblower protections. They are great. But, there is an authorized means there to follow.

It is not simply hypocritical to support whistleblowers and prosecute a few that break the rules. This doesn't make the choices made by Obama okay, but it adds perspective.

As to Shag's comment, Jefferson stretched things to purchase Louisiana, pushed controversial embargo laws seen as a threat to liberty, supported targeting federal judges and so forth. There was no pure age.

I also find "constitutional dictatorship" questionable. We don't have a "dictatorship" in this country. I have certain images of "dictators" like Mussolini or Pinochet. I think the term has a certain cachet that doesn't feel right.

# posted by

Joe : 3:19 PM

Joe's post is typically thoughtful. Most readers indeed reject the use of the term "dictatorship," precisely because it evokes Mussolin, etc. But the point is the adjective that precedes it, that there is an ancient tradition of "constitutional dictatorship," in part because it has often proved advisable, and the problem is that we have an unusually bad form of the institution. And we are averse even to discussing it because of the bad vibes generated by the term.

# posted by

Sandy Levinson : 4:58 PM

This comment has been removed by the author.

# posted by

Joe : 5:31 PM

Is there any reason that Obama's reading of the War Powers Act wouldn't allow him, on his own, to drop nuclear bombs on unsuspecting nations?

# posted by

Henry : 5:31 PM

I agree with Joe that the term “dictatorship” is not particularly helpful. Yes, it is true that the president has a good deal of power (de facto if not de jure) that he can exercise unilaterally in the area of foreign affairs. But there are still a whole host of checks which constrain him: (1) he is dependent on Congress for funding (unless, perhaps, he accepts Professor Epps’s invitation to borrow without congressional authorization); (2) Congress has all kinds of ways to retaliate against him if it feels he is abusing his power, such as blocking his domestic initiatives, refusing to confirm his nominees, launching investigations, etc.; (3) if he goes too far, there is always the possibility that the courts could intervene; (4) he is not going to be president forever, thanks to the 22nd amendment; and (5) if all else fails, there are the extraordinary remedies of impeachment and constitutional amendment.

It seems to me that the interesting question is the one Epps addresses, ie, is there any more merit to Obama’s interpretation of the word “hostilities” than Yoo’s interpretation of the word “torture.” He suggests possibly yes, though he doesn’t sound persuaded. It sounds like lawyers who are partial to Obama are trying to come up with rationales to suggest his position is at least colorable. I would like to see someone address this in more depth.

# posted by

mls : 5:34 PM

The "the problem is that we have an unusually bad form of the institution" is not really something I agree with.

Anyway, perhaps Shag and others would find this interesting:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1508666

I understand the word choice but still think the word has a traditional meaning that doesn't quite work. mls points out how "constitutionally" this is true.

I guess someone can add that even Mussolini types have SOME limits in the nature of the things. But, more so here.

# posted by

Joe : 5:37 PM

What's kinder and gentler about claiming the right to have Americans assassinated? Kinder and gentler my eye, he's an extrapolation of Bush, not a partial extension.

# posted by

Brett : 7:16 PM

The timing of this post was somewhat disconcerting to me as possibly overreaction to the Libya situation for which Obama has been criticized (and rightfully so) especially in comparison to the Bush/Cheney eight (8) years. Somewhat reluctantly, because of a big pile of reading to get to, I downloaded the article at the link provided by Joe, which turns out to be a lengthy (79 pages) article by Sandy and Jack Balkin titled "Constitutional Dictatorship: It's Dangers and its Designs." The article starts with "The Decider" quote of George W. Bush from Bob Woodward's "Bush At War" that suggests to me that this post and the article are not aimed specifically at Obama but at the presidency and executive power. The actions of Bush/Cheney are fairly recent and continue to impact Obama's succeeding administration; thus, Bush/Cheney cannot be ignored in this discussion. Perhaps this type of discussion was missing during the Bush/Cheney years. So it is appropriate to have the discussion now, even though the Libya situation is relatively minor in comparison to Bush/Cheney actions. [Sandy: I take note in the title of your post of "(Again)". I had missed this the first time around.]

So I thank Joe for the link and I hope to finish Sandy and Jack's article later today as I deal with mild insomnia.

# posted by

Shag from Brookline : 4:37 AM

The term constitutional dictatorship is very fitting. However reading Rossiter's thesis, one is left with the impression that the qualifying adjective, constitutional, has just barely survived the transition into the post-9/11 era. It seems that Obama(with his decision to ignore the OLC's advice)is, at least resigned to the fact that a permanent state of emergency, in the form of the national security state, is here for good. Which is especially disappointing since his presidency may very well be the last chance to correct the post 9/11 overreaches before the institutional cement is dry.

# posted by

Tobias B. : 10:00 AM

Sandy and Jack's article is sobering and non-partisan but not helpful to my insomnia. I'll be thinking about it all day - and perhaps beyond. Sandy and Jack did not "invent" the phrase "constitutional dictatorship" but update and add significantly to the subject, as noted, in a non-partisan manner. The difficulty is with remedies identified in Part IV "Designing Accountability in a Constitutional Dictatorship." Sandy and Jack's preference would be " ... to design systems for emergencies in advance to head off problems before they occur" to avoid sliding " ... into patently unconstitutional dictatorships; the past century has witnessed far too many examples." Sandy and Jack are to be applauded for this fine article, which is, to repeat for the third time, nonpartisan. Alas, a constitutional convention might be required.

# posted by

Shag from Brookline : 11:16 AM

From the Department of Fine Distinctions:

Rep. Nadler, who vociferously criticized OLC opinions during the Bush years and called for investigations of the lawyers that wrote them, said he sees a difference between the Bush OLC torture opinions and Obama's handling of the Libya question.

The Bush-era OLC opinions justifying waterboarding and other presidential policies were "totally dishonest," he said. "This is somewhat different." But Nadler said the White House's handling of the issue was "unusual and fraught with danger" and that the legal conclusion that U.S. drone strikes do not constitute "hostilities" under the law was "ridiculous."

# posted by

mls : 12:01 PM

I for one don't see much improvement in a move from totally dishonest to disingenuous.

I was hoping for better.

# posted by

jpk : 4:02 PM

Given that it was Obama, I can't imagine why...

# posted by

Brett : 9:16 PM

Obama's refusal to abide by the WPR may have the salutary consequence of forcing Congress to use it's actual Article I power of the purse and simply defund the Libya war. What makes this easier is that we have no ground troops in theater which the President can use as effective human shields.

There is an alliance of Dems and Reps in the House who will bring such a bill to the floor. It will be interesting to see if it passes.

# posted by

Bart DePalma : 9:11 AM

Here's our yodeler's comment on Rick Pildes' June 17th post at this Blog concerning the WPR"

****
The Constitution only provides Congress with two powers concerning the prosecution of a war:

1) Declaration of War: This is a permission to the President to begin an offensive war. The modern version of this is the AUMF. Apart from the2001 AUMF against al Qaeda, Declarations have been limited to war against nation states - like Obama's war against Libya.

2) Budget: Congress can decline to fund a war.

These powers were sufficient when the US did not maintain a large standing military and Congress had to appropriate finds to start a significant war. Today, the President has a large standing military with sufficient resources to execute a medium size war without bothering with Congress.

The WPR has no basis in either one of these powers. In particular, Congress has no power to compel a President to end a war apart from the indirect means of defunding it or perhaps impeachment.

From a practical perspective, allowing Congress to stop a war in mid-conflict by simply doing nothing has to be one of the worst ideas ever enacted by Congress. Apart from giving an enemy instant victory, disengaging suddenly from an active conflict is one of the most dangerous military operations for our troops.

No President in his right mind is going to comply with this WPR provision.
# posted by Bart DePalma : 11:52 AM
****

Compare this to our yodeler's comments at this post. His obvious hatred of all things Obama going back to the inauguration demonstrates our yodeler's inconsistent positions. Apparently our yodeler is concerned that President Obama is acting in his "right mind."

As to action that our yodeler anticipates from Congress, those who have actually read Sandy and Jack's (for the 4th time) nonpartisan article are aware of the role of Congress going back many decades in enabling the Constitutional Dictatorship of the Executive. We all are aware of how low Congress has been polling for a long, long time. What is not clear is whether this "lowness" of Congress is attributable to any significant extent to its enabler role.

# posted by

Shag from Brookline : 10:09 AM

Congress can't even pass a mild resolution of disapproval, but they are going to defund the war? Give me a break. Congress refuses to do anything about Libya other than gripe to the media not because the all-powerful and dictatorial President won't let them, but because they don't want to take actual responsibility.

# posted by

Steve M : 11:55 AM

This is probably not a popular sentiment, but I think Speaker Boehner deserves a good deal of credit for how he is handling this. He giving House the choice of two resolutions, one that would authorize the military action for a time-limited period and one that would mandate an end to combat operations. Thus, he is trying to get the House to take a position (and thus some responsibility) one way or the other.

# posted by

mls : 3:23 PM

Speaker Boehner is being pressured by public and internal criticism of the Obama position. The Republican caucus is split on the issue and any one measure would not satisfy both sides. To the degree he is handling this, okay, but I don't know how much "credit" he should get.

It is not if, given his druthers, he would necessarily care if the House did nothing. It isn't as if he is merely taking some principled stand that Congress should stake a position.

# posted by

Joe : 4:36 PM

Indeed there is a shortage of principled stands all around. Which is where we came in: the dictator doesn't need principle, and no one else can win on principle. In this context it's understandable that few will take a principled stand one way or the other.

# posted by

jpk : 6:40 PM

It's a mistake to say that a "constitutional dictator" doesn't need principles, since the basis of such a dictator's authority is the claim (and perhaps reality) that he must engage in extraordinry measures in order to save the country and preserve, for the long run at least, our constitutional order. Unfortunately, when we today hear the word "dictator," we think of what Schmitt called the "sovereign dictator" rather than the "commissarial dictator." Even with the latter, though, the key question is how (s)he should be chosen and what limits might be placed on otherwise dictatorial authority (since there is no reason to identify "dictatorial" with "unlimited").

sandy

# posted by

Sandy Levinson : 9:54 PM

John Adams in the 1780 MA constitution (Article 30 of Part One) on separation of powers set forth the phrase " ... a government of laws and not of men." (Soon the phrase was extended to " ... a nation of laws and not of men" but not specifically in the 1787 Constitution.) My conlaw Prof. Thomas Reed Powell in noting the phrase in his Columbia Carpentier Lectures followed up with this:

"Or as John Dewey once put it in conversation: 'to the end it may be a government of lawyers and not of men.'" (See Powell's "Vagaries and Varieties in Constitutional Interpretation," page 24.)

The Constitutional Dictator would seem to contradict Adams' phrase, including of the desired commissarial type. The hope would seem to be that a Constitutional Dictator of the commissarial type would be principled, in which case we would be a nation of laws and a few principled men. Alas, principle is in the mind of the beholder. And designing the system to control or limit the Dictator would involve men - and women - via a constitutional convention. So, does Adams' phrase stand up today or Dewey's variation?

# posted by

Shag from Brookline : 4:54 AM

"since the basis of such a dictator's authority is the claim (and perhaps reality) that he must engage in extraordinry measures in order to save the country "

I think this assumes an opposition to the claim of power, in a position to actually do something about it, which must be persuaded to stand by doing nothing.

Rather, the (un)constitutional dictator, (That only Congress can declare war is a constitutional requirement, for instance.) in America simply acts, without making any theoretical claim to the power, in the knowledge that his faction in Congress has enough votes to prevent any blowback, and that the opposition party consists mostly of rent seekers who'd find enforcing limits on his power a distraction from soliciting kickbacks.

He exercises power because nobody in a position to stop him has any real desire to, and he doesn't have to persuade them to refrain.

# posted by

Brett : 7:23 AM

Deep down, Brett's answer to this of his:

"He exercises power because nobody in a position to stop him has any real desire to, and he doesn't have to persuade them to refrain."

may be his view of the Second Amendment as virtually an unlimited right. But those who might disagree with him just might respond in kind. Alas, the cross-fire ....

# posted by

Shag from Brookline : 7:36 AM

As to mls' latest comment, it seems Boehner might be changing gears:

http://tpmdc.talkingpointsmemo.com/2011/06/house-republicans-leaders-have-decided.php?ref=fpb

BTW, some suggest Senate Minority Leader Mitch McConnell was somehow being off by noting the opposition here might in large part be based on who is in the White House. But, besides being honest, why wouldn't it? Opposition is often based not on mere principle but practical effects.

The felt ability of the person in power and support of his/her overall aims is a quite reasonable thing to take into consideration. As long as you admit to it and not claim you are mere all principled or something.

# posted by

Joe : 9:44 AM

Fairly early in my law practice, a client urged me to take on his cause which was for him a matter of principle even though the economic aspects of pursuing his cause would be problematic not only for the client but also for me.. I learned in such a situation to inform the client that for me it was a matter of principal for which he would have to bear the expense to pursue his principle. I should note that there were some few situations when the client's principle also became mine.

Opposition politics can be both a matter of principle and principal, but not necessarily both at the same time. Consider campaign financing with substantial principal pursuing questionable principle.

# posted by

Shag from Brookline : 10:33 AM

Shag: delightful.

I can't tell you how many job ads in my industry are seeking "principle engineer". Would that principles could be engineered.

# posted by

jpk : 2:43 PM

Sandy's recent post does not permit for comments. Just a few minutes ago, I watched a rerun of last night's Charlie Rose Show with a feature on the new issue of Time Magazine on the Constitution. The cover displays the Constitution and asks: "Does It Still Matter?" by Richard Stengel. I don't know if Sandy has seen the Show or the Time feature, but if and when he does, I would imagine he might be inspired for another post, hopefully this time permitting comments.

# posted by

Shag from Brookline : 1:07 PM

The Time feature is available on the Internet. Surely it will make some apoplectic. It asks the question: "So, are we in a constitutional crisis?" answering "In a word, no." It discusses the situation in Libya, the debt ceiling, Obamacare (especially the mandate) and immigration.

# posted by

Shag from Brookline : 2:20 PM

From Stengel's article:"But if in the end Congress seems intent on allowing the U.S. to default on its debt, the President can assert that that is unconstitutional and take extraordinary measures to avoid it. He can use his Executive power to order the Treasury to produce binding debt instruments that cover all of the U.S.'s obligations around the world. He can sell assets, furlough workers, freeze checks — heck, he could lease Yellowstone Park. And it would all be constitutional."

I attempted to debunk this notion in a series of posts at Point of Order. If you are worried about a constitutional dictator now, you should be really worried about one that can provide his own financing.

# posted by

mls : 4:24 PM

Stengel's article provides only an excerpt of Section 4 of the 14th Amendment. Section 4 reads, in its entirety:

"Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void."

The first sentence is relevant to the debt ceiling issue. The phrase "authorized by law" is key. I think that is the point of Stengel's position, although I would question the issuance of new debt instruments by the Treasury other than for what has already been "authorized by law," including my Social Security payments, even if the debt ceiling is exceeded. mls may be challenging Stengel's claim of actions that can be taken by Executive power to cover public debt. If mls provided a link to Point of Order, I could check his posts there.

Query: has the role of Section 4 been addressed by constitutional scholars in connection with the issue of the debt ceiling?

# posted by

Shag from Brookline : 8:47 PM

I see that Bruce Bartlett made the same argument on Section 4 as Stengel well in advance of Stengel's article. Perhaps that's how Stengel picked it up for his article.

Query: from a textualist/public meaning-originalist perspective, does " ... shall not be questioned" mean " .. shall be answered"? Is Section 4 vague, requiring not interpretation but construction?

# posted by

Shag from Brookline : 9:00 PM

Garrett Epps made the argument first. Bartlett and others picked it up from him.

I have been trying to get Professor Levinson to weigh in, but no luck so far.

# posted by

mls : 9:05 PM

This comment has been removed by the author.

# posted by

mls : 11:00 PM

Shag- linking still seems to be beyond my capability, but this is the address of my first post on the Public Debt Clause

http://www.pointoforder.com/2011/06/02/arrest-me-i-question-the-validity-of-the-public-debt/

The only scholarly treatment of the Clause was a law review note by Michael Abramowicz, which I discuss in my posts.

# posted by

mls : 11:08 PM

As my mild insomnia continues, I just came across the review by Paul Krugman and Robin Wells in The New York Review of Books of Jeff Madrick's "Age of Greed: The Triumph of Finance and the Decline of America, 1970 to the Present." The review is titled "The Busts Keep Getting Bigger: Why?" Here's the URL:

http://www.nybooks.com/articles/archives/2011/jul/14/busts-keep-getting-bigger-why/?pagination=false

Maybe there isn't a constitutional crisis right now, but the economy sucks and the financial community exceeds its banks (pun intended) leaving us to mop up.

mls: thanks, I'll check it out - after trying to fall asleep.

# posted by

Shag from Brookline : 4:30 AM

I have downloaded and printed mls' posts of June 2, 3, 4 and 6 at Point of Order on public debt. It's so close to breakfast, I do not plan to go back to bed. I have glanced through the posts and thank mls for the thought he has put into them. These posts bring into play constitutional interpretation-construction that I have been commenting on recently at this Blog. Textualism/originalism/living constitutionalism do not provide a clear cut answer to Section 4 of the 14th Amendment. And, as the posts seem to indicate, the Court will probably not get involved, which brings us back to Stengel's discussion of "The Debt Ceiling." Any solution is to be political, as it has been so often in the past with debt ceilings, without a constitutional convention. Enter Sandy?

# posted by

Shag from Brookline : 5:02 AM

mls' Point of Order posts did not cure my mild insomnia. These posts are well done and worth a read, especially since they preceded Stengel's article. Perhaps if Stengel had been aware of mls' posts, his discussion of The Debt Ceiling might have considered and addressed them. (Possibly Stengel was aware but ignored them, unfortunately.)

So as a geezer I must emulate Paul Revere from the Boston area and warn other geezers:THE SOCIAL SECURITY CHECKS MIGHT NOT BE COMING!

mls brings John Yoo into the discussion, perhaps in an effort to rehabilitate him. (Can we expect mls to author "REHABILITATING JOHN YOO" to ride on the coattails of "Rehabilitation Lochner"?) I don't think it will work.

The penultimate [my favorite word] paragraph of mls' June 4th post reminds us of separation of powers, the supremacy clause and the difficulties of constitutional interpretation-construction:

"In conclusion, I have no doubt that the Congress and (in his legislative capacity) the President have the duty to balance the books of the federal government. Likewise, they have the duty to make sure that the federal government does not borrow more than it can reasonably be expected to repay. I have no problem with characterizing these as constitutional duties, reflected in the Public Debt Clause and pre-existing constitutional provisions. But there is simply nothing in the Constitution that tells the Congress how to reach these required goals, or authorize any other entity (except state legislatures under Article V) to force a particular solution on it."

Those who have read or plan to read Stengel's article should also have the benefit of mls' earlier posts to better understand the former as it is deja vu all over again on The Debt Ceiling. [Note: I don't know if Richard Stengel is related to the late Casey Stengel who mentored Yogi Berra , but I just had to mention this. In the early 1940s I was a member of the Knot Hole Gang at Braves Field where Casey managed the lowly Boston Braves, that permitted me and my peers to enjoy major league baseball at affordable prices. Alas, the Braves moved away after winning a National League pennant. But in his own way, Casey made sense, that he passed on to Yogi when managing the Yankees. Richard makes sense in much of his article; but there are questions with his view of The Debt Ceiling.]

# posted by

Shag from Brookline : 7:23 AM

Shag- thanks for the kind words.

With regard to John Yoo, I would just note that Epps brought him up first. And my purpose is not to rehabilitate Yoo- I have been extremely critical of his work at OLC. I just don’t think that “Yoo started it” is a good legal argument.

I am a little surprised that the posts on the Public Debt Clause didn’t cure your insomnia. Next time try the posts on Speech or Debate. ;)

# posted by

mls : 8:24 AM

The deep structures are not only political. Not even mainly political. They are, first of all, economic. You can not have full political democracy without economic democracy. As long as key decisions on investment, production and distribution are made by and for a class (which hides behind the facade of the market mechanism ), not for all, the Government will be the captive of this ruling class. But I agree with the main point here. This is the deep structures that things are not, who won the last election.

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