Will Obama drive us over the cliff while proclaiming his constitutional purity?

Sandy Levinson

Jack's post helpfully (and I think conclusively) demonstrates that the Congressional Republicans are basically violating their oath to support the Constitution by refusing to shore up the debt of the United States. But so what? I.e., what remedy for such unconstitutional conduct--i.e., the refusal to pass legislation that would allow the United States to meet its domestic and foreign debts--is there? Can one go to a court and get a writ of mandamus, directed at every member of the House and Senate, ordering them to live up to their oath? This suggestion is as ridiculous as suggesting that Lincoln should have gone to a court to seek a similar writ against Southern secessionists.

Even more to the point, though, is the conduct of Lincoln's predecessor, James Buchanan, widely regarded as possibly the very worst of our now-44 presidents. (For what it is worth, Buchanan had probably the best resume of any post-Founding era President, and he was scarcely an idiot.) Buchanan actually agreed with Lincoln that secession was illegal, but he also believed that the Constitution provided the national government no way of preserving the Union other, basically, than through exhortation, which he eloquently presented in his final State of the Union message in December 1860.

In an article on "Constitutional Crises," Jack and I offered a typology of such crises. Type I is open defiance of the law, as arguably occurred, at least from his own perspective, in Jefferson's purchase of Louisiana and, possibly, in some of FDR's actions in the run-up to World War II. But they are extremely rare, for obvious reasons--what President wants to admit that he is engaging in civil disobedience--and even Jefferson's and FDR's doubts about the propriety of their actions can be found in private letters rather than public documents. A Type II crisis, typified best by Buchanan, is when a political leader believes there is no alternative to going over the cliff--in that case, accepting illegal dissolution of the Union--because the Constitution doesn't provide an adequate way to prevent it (beyond exhortation, as in "come let us reason together"). A Type III crisis, incidentally, is when a president (or other leader) faced with the Scylla of engaging in open defiance of the law and the Charybdis of leading us over a cliff, manufactures a legal argument designed to justify the emergency action. Type III crises are a relatively common event in our history.

So let's review the bidding: Laurence Tribe, who remains the country's leading academic constitutional lawyer, backed by Jack, argue that the President is without legal resources should congressional Republicans continue to behave like latter-day Jefferson Davises and risk the destruction of the national (and world) economy (and, according to Bruce Bartlett, vital American national security interests). So are we going to go over the cliff, with Obama, the legendary former professor of constitutional law at the University of Chicago and president of the Harvard Law Review, saying, like Buchanan, "I know this is terrible, but what do you expect me to do, since I've sworn to uphold the Constitution?" Or will he, like Lincoln (and other predecessors), decide that driving over the cliff in the name of constitutional fidelity, when faced with a Congress that is traducing their own such duties, isn't really such a great idea? If that is the decision, will he do by becoming, almost uniquely, a Type I "constitutional defier" (violating the Constitution in order to save the American order, which Michael Stokes Paulsen argued, incidentally, was a power given by the Oath of Office, which is how he defended Abraham Lincoln and, more recently, George W. Bush). Or will he, like most political leaders, decide that there might be some merit in the Section Four argument for presidential authority after all, whatever grade it would receive from his mentor at the Harvard Law School?

As Jack argues, incidentally, it is vital that Obama begin to educate the public about the unconstitutional behavior of his Republican adversaries, and if there is anything we seem to know about him, it is that he will be extremely reluctant to do so. But without such attempts at public education, preferably in a nationwide address addressed to the greatest potential crisis since September 11, he allows all of this to be reduced to "pure politics," with the Constitution serving only as a "suicide pact." Will that be his legacy to American constitutionalism?
Posted 6:34 PM by Sandy Levinson [link]