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.
Posted 2:01 PM by Sandy Levinson [link]