Balkinization  

Monday, July 25, 2011

Toward a parliamentary system?

Sandy Levinson

There is a growing perception that we are living in momentous times, certainly as we look around the world (e.g., the "Arab Spring") and, increasingly, at home as well. There has been much written about the move toward presidentialism by those (including myself) who have suggested that President Obama summon up "emergency power" to keep the US from defaulting. The most "exuberant" such arguments, of course, are found in the Vermeule-Posner op-ed, which basically calls for the President to exercise the powes of a Schmittian "commissarial dictator" by citing his duty to "save the nation" without citing any explicit constitutional authorization. ("Moderates" like myself believe that Section 4 of the Fourteenth Amendment could provide such authority, though Laurence Tribe, Marty Lederman, and Jack Balkin all provide good arguments as to why those arguments are weak)

But consider the story du jour, which is that John Boehner is threatening to pass a House bill to extend the debt limit, though only until next year, with attendant spending cuts and no tax increases, and basically daring the Senate and the President not to accept it on pain of default. If one doesn't like this prospect, one could describe it as a thuggish, even terroristic, threat akin to "I have your child, and I'll kill him if you don't give me what I want." But my aim in this post is not to (further) engage in rants. Rather, I want to consider the consequences for our political system if Boehner acts out his apparent intention, which, as Nate Silver notes, in his discussion of "Speaker Boehner's Big Gamble," requires that he get enough Republican votes to pass his bill, including the votes of at least some Tea Partiers who have sworn to vote for no debt increase bill, period.

About 15 years ago, Dan Lazare published THE FROZEN REPUBLIC: How the Constitution Is Paralyzing Democracy. As you might infer from the title, I basically agree with him, but that's not the main point of this post, either. Rather, Lazare's "solution" to the problem, which I confess I found implausible and criticized in Our Undemocratic Constitution, was to have the House of Representatives basically declare itself sovereign and eliminate the impediments to democracy instantiated in the Senate and presidency. But is that really so implausible any more?

For if Boehner were to succeed, it would be by forcing the Senate and the President to admit that they in effect had no choice, that "We the People" are, at least during an emergency, instantiated in the House of Representatives and nowhere else. I assume that Obama, as he signed the bill, would be somewhat like King John at Magna Carta, recognizing a new political order. To be sure, once the emergency is past, then it would be "politics as usual," but, perhaps, not really. Because "emergencies," even if not so melodramatic as default on the debt, will always be with us, and what Lazare accurately calls our paralyzed political system will prove unable to respond to them effectively. So we might expect further displays of authority by the House, including, if they have the spine, a future Democratic majority faced with an indefensible Republican Senate--the fact that the current Senate is less lunatic than the House of Representative really doesn't do much to make it any more legitimate--and an ineffectual President of either party.

This is the way that shifts in power occur within political systems. Someone has to act audaciously (and we've learned, contrary to the 2008 campaign, that it isn't going to be the President) and to win. This is the meaning of "constitutional showdowns," the trademarked term proffered by Vermeule and Posner. It really doesn't matter, from their perspective--or from mine, as a detached political scientist--that the House would be acting illegitimately, in terms of our standard-theory of how our tricameral system should operate. Macht ultimate transforms existing notions of legal reality.

Of course, Boehner might make his play and find that it doesn't work, that the Senate doesn't capitulate or that Obama (uncharacteristically) stands firm even if the Senate does capitulate. In that case, we presumably see default and then polls as to who gets blamed. (The current "wisdom of crowds on Intrade suggests less than a 30% probability of Congress passing no-default legislation in time. (It also assigns, incidentally, Rick Perry the highest probability of any of the Republican candidates, announced or not, of getting the nomination, though Obama is assigned a 55+% probability of winning in November.)

Stay tuned.....

UPDATE: Perhaps I should have titled this "Toward a system of cohabitation," to refer to the peculiar French version of divided government. It's clear that John Boehner is being treated by the networks as the equivalent of the President of the United States and that he's basically appointed himself Prime Minister, with the view that the pathetic Senate and neutralized President should simply accept the new political order. I don't know how much the French Prime Minister during periods of cohabitation is expected to "compromise" with the President., It is highly relevant, though, that the French President can dissolve the Assembly and call for new elections (which Mitterand did). Just as it's a defect of our patently defective Constitution that Congress cannot declare no confidence in an incompetent President, so it may be a genuine defect that a President cannot dissolve the House and call for new elections (perhaps of the House, Senate, and President simultaneously). But, as Donald Rumsfeld so ably put it, we carry out of dysfunctional politics with the Constitution we have, not the Constitution we wish we had.

Comments:

I read Dan Lazare's book some time ago and found it interesting but thought then and think now that we don't actually live in a "democracy" as such and have various differences (some positive) from the British system he (as I recall) favors more.
 

"I pledge allegiance to the Flag of the United States of America and to the Republic for which it stands, one nation, indivisible, with liberty and justice for all."

[version when Shag was born]
 

I guess I see this as less a case of the House claiming superiority (as, say, the House of Commons eventually did in England), than a case of mixing a parliamentary party structure with our Madisonian system.

Madison's system relies on virtue -- that is, the willingness to set aside private interests for the sake of the nation. The House majority, in contrast, is at least saying (whether they'll carry through is unknown yet) that it's willing to hold the national interest hostage for party purposes.

Now, the outcome might well be a system of future House superiority, which frankly I would welcome because it's by far the more democratic of the two bodies. But other outcomes are also plausible, including Executive authoritarianism. I'm less enthusiastic about that (said with understatement).

Ultimately, though, our system can't function as half parliamentary and half republic. One or the other has to give.
 

Boehner creating a half-assed Parliamentary system is the worst of all worlds. If you're going to do it, you need to make it clear that the head of the legislature is in charge, give him the Cabinet, not the President, you should give him a better title than Speaker, and you really need variable term elections with a maximum length of four or five years, not two. It would also help enormously to hobble the other house, either by making overrides possible or by enforcing something akin to the Salisbury convention curtailing the scope of their power (no blocking of bills that were in the manifesto before the election, etc.). The presidential veto would also need to be removed or bound to never be used. Obviously this would require a mega-amendment or a new constitution entirely.
 

The biggest thing preventing the US from developing a parliamentary system (as much as I would personally be in favor of that) is the provision in Article I Section 6 the prohibits legislators from serving in any "civil office". Hence the need every four years for a handful of Senators and the occasional Representative to resign suddenly to take up cabinet seats. Parliamentary government does not work if the legislators cannot hold executive office; otherwise, there is an independent executive that can always interfere with the legislature's plans.
 

You'd have to change Article 1, Section 6 too. I should have added that, but it was sorta implied by the leader of the House choosing the his own Cabinet, rather than the President. Clearly our separation of powers doctrine prevents a true Parliamentary system; it too would have to be changed, collapsing the executive branch into the legislative branch.
 

Maybe I missed something, but my copy of the Constitution says that “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” I am pretty sure that this hasn’t changed because I heard Charlie Johnson reading it to the Clemens jury just a couple of weeks ago.

And since “borrow[ing] money on the credit of the United States” is one of those legislative powers expressly given to “Congress” which (to review) consists of a House and Senate, I am pretty sure that the House has always had to agree to any borrowing on the credit of the United States. The House may be less agreeable than in the past, but that doesn't amount to a change in its powers or to our constitutional system.

Now if the President were to assert successfully the power to borrow money, that would be a major constitutional change.
 

Ok, first of all, default is flatly prohibited by the Constitution, the highest law of the land. Refraining from spending appropriated funds is prohibited by a statute, NOT the highest law of the land.

Therefore the constitutional response to the debt ceiling not being raised is to stop spending money we don't have, not to stiff our creditors. Default isn't the inevitable result of the debt ceiling not being raised, it will be a deliberate choice to violate the Constitution.

Second, as I understand it, the leaders of the House and Senate actually reached an agreement to raise the debt ceiling over the weekend, which was rejected by the President, because he didn't fancy the subject coming up again while he was running for reelection. So let's put the blame in the right place: Obama.

Third, Lazare's speculations seem bizarrely disconnected from actual public opinion. His scenario would probably end in a revolution, not a parliament, in as much as, no matter how much it disturbs many, the Constitution is much more popular than the government which rules under it.
 

I'd reject a short-term fix too, until it was sitting on my desk at 11PM on August 1. Does anyone really want to go through this AGAIN?

For that matter, does Mitt Romney, in the middle of the campaign, want to be forced between getting behind raising the debt limit (which, even with concessions, is unpopular) and getting behind sending the country into a non-Sovereign debt default (i.e., it can't pay its bills)? I doubt it. He also doesn't want Boehner hogging the limelight at such a time, either. A short-term fix is good for no one. It's only better than having no fix at all.

If Bachmann's the nominee, she would probably relish the situation. But if Obama is pathetic enough to actually lose to Bachmann, he ought to have his citizenship revoked. And he just might, considering the number of birthers that would fill the executive branch under President Bachmann.
 

I think this post misses the mark a bit. The reason Boehner is plausibly in the driver's seat is not because of any special property of the HoR vis-a-vis the Executive or the Senate, but rather because he represents a caucus that is, seemingly, willing to actually have a head on collision rather than turn aside. We could just as easily find ourselves next time with a lunatic Senate, in which case they would be dictating terms. And of course there is ample precedent for the President doing what he wishes and going to Congress afterwords.

In contrast, the House of Commons in England had a unique claim on legitimacy. Repeated refusals to form a government by the majority party could potentially have lead to a revolution.
 

"In contrast, the House of Commons in England had a unique claim on legitimacy. Repeated refusals to form a government by the majority party could potentially have lead to a revolution."

Could you explain that a bit? Do you mean that if the monarch had repeatedly refused to let the majority party form a government it could have led to a revolution?
 

"but rather because he represents a caucus that is, seemingly, willing to actually have a head on collision rather than turn aside."

I keep saying this, guess I'm going to have to say it again: Game of chicken, two players. It takes both sides willing to have a head on collision for there to be a crash.

There's just no use pretending otherwise. The House has already passed a debt ceiling increase once. If the debt ceiling hasn't, none the less, been increased, somebody else has to be obstructing at this point.
 

The House voted a budget earlier this year.* It voted for appropriations. The time to fight these issues was then, not now. In fact, the failure to raise the debt ceiling, having already approved the debt, plainly violates the 14th A.

Nor is this a case of "chicken". This is a case where one side keeps trying to avoid the collision, and the House changes direction in order to force one. Hit and run drivers don't get to defend themselves by claiming both sides were at fault.

*Technically, a continuing resolution.
 

Brett,

You mean Cut, Cap, Balance? It requires a friggin' constitutional amendment guaranteeing in practice that no taxes will ever be raised again (among other things) to be sent to the states. If Ronald Reagan were president and the Democrats passed a bill to raise the debt ceiling that required a Universal Healthcare Amendment to be sent to the states, would you still claim it takes two to tango? Seriously?
 

Our fine blogger assumes that Democrats would behave in the same fashion if the roles were reversed. But the roles were reversed four years ago. And the democrats in the house didn't go around making a fake crises out of the debt ceiling. This isn't a power shift towards parliamentarism. This is a power shift towards arseh*les. Who ever will destroy the country if they dont get their hostages rules the country. Frankly, that is a worse basis for a system of government then strange women lying in ponds distributing swords.
 

The Democrats not fomenting crises between 2007 and 2009 was at least partly tactical. They were aiming to win the White House, which Gingrich and Dole failed to do through their confrontationalism. It worked, with help from the financial meltdown of course.
 

Boehner's actions are ad hoc not aimed at gaining higher office or trying to gain power for the House. He only wants to retain his current status and advance that of his party. It's power politics writ small. As the partisanship within the system becomes a self contained theater of short term tactics for a goal that is never thought through. Thus governance devolves.

The lackeys like Boehner have little clue that they are dismantling The Nation in service of the new world order of corporate dominance of all things economic including absolute control of money itself. Stipulating that in this age of economics that economics is everything. In other words we must all serve the economic system not the other way around.
 

"The Democrats not fomenting crises between 2007 and 2009 was at least partly tactical. They were aiming to win the White House, which Gingrich and Dole failed to do through their confrontationalism. It worked, with help from the financial meltdown of course."

Other things than the FM helped there too, of course, but notable bit of strategy. If tactical moves result in a party not doing something to endanger the nation, the system set up has something going for it.

One important thing here is to somehow ensure enough of the public realizes what one party is doing here so that they don't elect enough of them to do it again. MF's analogy works and not to be all "partisan" or anything, it underlines "they aren't all alike," even if some think so.

One side is patently wrong even if the other is not right enough. it is not merely an ideological difference. It is that their "tactics" are reckless.
 

Brett's conclusion:

"Therefore the constitutional response to the debt ceiling not being raised is to stop spending money we don't have, not to stiff our creditors."

would suggest that we indeed might "stiff our creditors" - which Brett says earlier would be unconstitutional - by "stop spending money we don't have."

By the Bybee [expletives deleted], "our creditors" presumably are the ones owed "public debt" within the meaning of Section 4 of the 14th Amendment. To understand who these creditors are, we still need a definition of "public debt." Might it include all that Congress authorized but may not have funded?

And Joe, that was the pledge all the way through my Boston public school days ending at EHS Class of '47. While Ike may have knocked down part of the separating wall, it may have been God who convinced Ike to appoint Earl Warren, making me perhaps rethink agnosticism - NOT!.
 

In a game of chicken, or mututally assured destruction, often the one perceived to be the craziest wins the bluff.

So is the republican tea party really that crazy and delusional, or just playing the better bluff?
 

"In contrast, the House of Commons in England had a unique claim on legitimacy. Repeated refusals to form a government by the majority party could potentially have lead to a revolution."

Could you explain that a bit? Do you mean that if the monarch had repeatedly refused to let the majority party form a government it could have led to a revolution?

During the crisis over the Reform Act of 1832, the House of Commons was repeatedly being blocked by the Lords - despite the Commons having just received a strong electoral mandate for reform. In response the Prime Minister (who happened to be a lord) asked the King William IV to pack the Lords. The King refused, and so the PM and the entire cabinet resigned. There followed riots and a financial panic. Eventually the King let it be known that he would relent and the Lords rather than be packed acquiesced to the reform bill. This set a precedent that eventually left the Lords almost purely ceremonial.

Had the King, Lords and Commons each had equal legitimacy in the eyes of the public, I don't think the situation would have played out the same way.
 

"This set a precedent that eventually left the Lords almost purely ceremonial."

Ah, it set the stage for the passage of the Parliament Act of 1911 allowing the Commons to pass legislation without the Lords. Although in that case, it took the death of King Edward VII and the accession of his son George V, since the former was unwilling to pack the Lords but the latter was (and again, the Lords backed down rather than have the king pack them).
 

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I seem to recall that during the first two years of Obama's term, when both Houses of Congress were controlled by the democrats, the more liberal House always seemed to defer to the Senate. Whenever the House passed a liberal bill that the more conservative Senate wouldn't consent to the House leadership would say they had no alternative but to consent to the Senate's position. Now however for some reason the shoe is on the other foot and our elites assume the senate must defer to the House. Could it be that this has nothing to do with Constitutional niceties but with in both cases deference to the more right wing body is seen as being required?
 

Boehner create a half-ass parliamentary system is the worst of all worlds. To do this you must make clear that the head of the legislative authority is responsible, to give the cabinet, not the president, you should give it a better title than the speaker, and you really need the election term variable with a maximum length of four or five years, not two. It would also contribute significantly to inhibit the second home, either by making outweighs possible, or using something akin to the Convention for Salisbury limit the extent of their power (no blocking bills that have arisen before the election, etc). The president's veto would also be removed or tied to never be used. Obviously, this would require a change in mega-or an entirely new Constitution.

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