Balkinization  

Wednesday, October 24, 2012

Was John Yoo right after all?

Sandy Levinson

John Yoo is famous (or notorious) for suggesting that the American president should be conceived as similar to a Hanoverian monarch.  He has, of course, trotted out that theory with regard to the President's autonomous war powers, where I think he's wrong.  But there is one area where there might be something to Yoo's theory, which has to do with the way we all too often elect presidents without having more than the vaguest idea who will actually staff their administrations.  As I suggested in my previous post, this may be in part because we have a ridiculously over-individualized conception of the President and take seriously the absolute and utter fatuity of Romney's promising what he will do on his "first day in office" (just as Obama had promised to shut down Guantanamo). 

With Obama, for better and worse, we have an excellent idea who will staff his second term, save for Secretary of State, where it will apparently boil down to a choice between John Kerry and Susan Rice.  Presumably, there will be some other resignations, and, I must say, I'd love to know who will replace Tim Geithner, at best a debatable, if not egregious, choice as Secretary of the Treasury in the first term.  But with Ethc-a-sketch Mitt, we have no idea whether the Secretary of State will be mad-dog John Bolton (unlikely, perhaps, but who knows) or someone more sensible.  Will Richard Murdock (assuming he's a lawyer) emulate John Ashcroft and, after ignominious defeat in a Senate election, suddenly find himself Attorney General?  And so on.  A sensible political system might allow voters some insight on such issues before they vote, but, of course, that's not the American way of doing things.  Instead, we vote for pigs in a poke, full of illusions (and delusions) about what kind of people they'd actually appoint to important positions.  The Brits at least have "shadow cabinets"; we don't even have shadows of shadows.  It realy is as if we're still in the 18th century, voting for our elective monarch, constrained in some ways to be sure (again, see previous post), but with remarkable freedom concerning administrative appointments (save, of course, for Senate confirmation, which blows hot and cold as a genuine way of checking egregious appointments). 

One "benefit" of this election is that it demonstrates so many things that are wrong with our basic constitutional structures, but, insofar as the worst part of the Constitution is Article 5, I suspect that we will all continue to deny that the Constitution has anything to do with why most Americans, across party lines, have increasing contempt for their government.

Comments:

Sympathetic as I am to the idea that Presidents should identify cabinet positions before the election, there are limits to this. After all, there is nothing under current SC doctrine which would prevent a president from replacing a cabinet official at any time. The English system does have such protections in place, sadly, since it saddles them with the likes of Osborne.
 

More to the point, identifying your cabinet appointments ahead of the election is legally perilous. I forget the specifics at this moment, but identifying your nominees in advance could be legally construed as some form of bribery or selling offices.

Perhaps this should be altered to clarify that you can name a shadow cabinet in advance of the election.
 

I'm not game for comparing the President to a "monarch" just because (like some businessperson, to use a comparison) s/he has the ability to pick a team. "Monarch" means more than that.

The first day in office thing was ridiculed wonderfully by Stephen Colbert recently. There is a schedule & he should be ready to resign by the end of the day.

The idea of giving notice who your Cabinet will be is reasonable up to a point. After all, the Senate has to confirm etc. As to bribery, I think the details of the statute has to be looked at. Just saying who isn't enough. There has to be more of a quid pro quo.

The last post noted the compromises the President had to make, some not ideal. But, that works both ways. Some compromises are more ideal, when it restrains bad things the President do.

The restraints limit what Obama could do but they limited what Bush could do too in some ways, though some might have thought he had few limits. No "monarch" quite here though even they had limits in practice.
 

The worst part of Article V?

All the wonderful changes the left want to the Constitution are infeasible, because those meanie states are allowed to reject them, and would. That's why amendment by judicial subversion is superior: It allows the changes to be forced down everybody's throat, without any means for the people to reject them.

Nah, the only problem with Article V is that it routes the convention process through the very Congress it's intended to circumvent. Which we're going to see soon, when enough states call for a convention, and Congress refuses to hold it.

The real problem with the Constitution is that, by having the judges ruling on the Constitution's meaning chosen by the same people whose actions they're ruling on the constitutionality of, it made corrupting the judiciary too obvious and easy a route to making the Constitution toothless.

We'll have to keep that in mind when we write the next one.
 

Brett attacks "the left" again and how THEY "subvert" the Constitution by judicial review.

"The right" never do that sort of thing. And, this use of judicial review "forces" things down people throat without "any means" to reject it. Ideologically slanted exaggerated and anti-republican (small r). A trifecta!

Did Brett come from his hot tub time machine where Congress actually refused to hold a convention? The right number of states never asked. And, if they did, reasonably, it would have to be on the same subject. I'm sorry for the sarcasm, but after he blames "the left" for something "the right" has done repeatedly he makes a prediction with no real grounding if fact.

Who exactly would choose judges? Judicial review rules government action. Picking judges is governmental action. Will they square the circle next time too?
 

Sandy:

Is there any evidence that UK voters consider cabinet members any more than American voters in their election decisions?

Both our electorates seem to begin and end their decisions with some combination of party and the person running for President/PM.
 

If the U.S. Constitution were really responsible for Americans' low approval of their government, as you hypothesize, then we should expect the government approval ratings in countries without our Constitution to be higher than our own gov's approval ratings. But this is not the case. As some of the links below show, people all over the world view their governments with about the same level of contempt as we view our government with. What's more, global approval of US leadership is 46%, tied with Germany for the highest in the world. Does our Constitution get "credit" for this result since it is getting blamed for the other stuff?.

1) http://www.gallup.com/poll/153965/germany-tie-highest-approval-among-top-powers.aspx
2)http://www.gallup.com/poll/154625/southeast-asian-leaders-earn-highest-job-approval-asia.aspx
3)http://www.gallup.com/poll/152111/leaders-low-job-approval.aspx
 

With Gov Rommney being such a thin reed bending in the wind, it is hard to know where the wind would come from should he be elected. One place to look would be the teams of advisers he has now. There appear to be some neocons on the foreign relations team and some pretty far out types on the economic team. Maybe the candidates should be required to more clearly disclose all their campaign advisers.
 

Mike:

Both parties have a technocracy to draw from that resurfaces every time their team wins power.

It would be nice if Romney brought in some new blood.
 

Is our yodeler's:

"It would be nice if Romney brought in some new blood"

an attempt at Halloween humor in recognition of The Mittster's Bain financial skills in Vulture Capitalism or aimed at a bloodletting (post-elelection, of course) of Bush/Cheney and the NeoCons? Perhaps our yodeler has in mind leaders of the Tea Party as new blood, several of whom are having problems in their Senate runs with statements on rape.
 

Shag:

I would see your physician now for a wellness check to determine if your heart is health enough to watch the election returns in 11 days. If not, take a vacation to a nice calm tropical island without TV or internet.

From your point of view, the election returns are going to seem like a marathon repeat of that hellish 1980s show.
 

If the coming election results will have an effect upon my heart, it is because I have a heart, something our yodeler has demonstrated he lacks. As for a vacation, perhaps a trip to the Mile High City of CO fame second only to the hill on which our yodeler resides could provide a real trip when I get there.

My first presidential election was in 1952, and its most distressing result was that Tricky Dick Nixon was a heartbeat away from the Presidency. Fortunately, Ike proved durable despite some health problems and Tricky Dick had to make a direct effort, which he lost to MA Sen. JFK. Tricky Dick lost out a couple of years later in his efforts to make a political comeback as Governor of CA.

Alas, Tricky Dick survived to run in 1968 and won with Spiro Agnew as his VP. A law school classmate even more liberal than I was extremely upset. I tried to console him, saying "Don't worry, Tricky Dick .won't ruin the country." And he didn't, although he came close even after Spiro was earlier shamed into retirement.

The Mittster, despite his his weathervane political campaign, is lesser of an evil than was Tricky Dick. So if R-MONEY/R-AYN 2012 turn out to prevail, then they actually will have to govern. This is where Jack Balkin's essay would come into play. STAPLES won't keep the economy together and backgrounds of Bain Vulture Capitalism and Randian selfishness will flop.

But it's nice that our yodeler is concerned (half-heartedly) with the health of an 82 year-older. I survived Tricky Dick and take pride in the late George McGovern's demonstrating MA wisdom in rejecting Tricky Dick in 1972. Our yodeler has long ago thrown Tricky Dick/Agnew under the bus and more recently Bush/Cheney and the Neocons.

Just maybe, if R-MONEY/R-AYN 2012 prevail, our yodeler may yet end up leading the CO Tea Party contingent in the Million Tea Bagger March on Washington, D.C. when those STAPLES get undone by selfish Randian hands.

(I'll have more to say on the "hellish 1980s" with its many, many Reagan tax cuts after martini time with Bombay on the rocks and a wedge of lime - doctor's orders.)
 

Per the new SSM post, SCOTUSBlog reports that the Obama Administration has chosen it as the ideal avenue for cert.

BTW, I question if "most" Americans really have "contempt" for their government. I really don't think the majority thinks about it enough to have that much disdain.

I asked a public school teacher, e.g., about some anti-teacher union movie that received some blog attention. She didn't know what I was talking about. Too busy teaching, I guess.

People are too busy living to have 'contempt' as a norm. Sort of why the stuff Levinson, Brett etc. find so problematic lingers on.
 

Joe, you may be right; My co-worker, who's no idiot, is so completely ignorant of politics that he doesn't understand the most basic thing about how the government functions. Apparently forgot US civics the moment he left the class. He's gotten interested with the approach of the election, and our office is a combination design office and refresher course in the Constitution at the moment.
 

Those having contempt for government might try this:

From the time you wake up until you go to sleep, as you go through your daily activities, give some thought to how the government may be involved or impact, directly or indirectly, such activities. And consider what you may not observe with your own senses that government does provide you, even when you are sleeping. Consider what's positive and what's not. Consider who and how the expenses of such government are funded. Consider the impact of inadequate funding. Government is part of the social contract. It may not be perfect, which means that you and others have to be alert.

Brett mentions civics courses. My understanding is that such courses are no longer regularly taught. Those of us who have practiced law to any extent understand the need of government, good government. But specialized training is not required. Youngsters have to be exposed to civics in school, with occasional refreshers. Expertise in constitutional law is not essential. PBS has sponsored children's programs on how laws are made. PBS has has programs on the roles of lobbyists and money in politics that impact upon good government. I think more kids watch the programs on how laws are made than do adults who watch lobbyists in action.

Joe's point is valid. But people have to take the time to understand the roles of government, not just listen to sound bytes. An informed citizenry results in better government. But how well do political campaigns inform us, judging by those presently underway?
 

This comment has been removed by the author.
 

If Mark Field was around, he probably could relate with Lawrence O'Donnell (who had a former governor there to help) tonight struggling over the myriad number of ballot measures a CA voter has to vote on.

Such is the value of representative government. Giving the average voter, heck giving the fairly informed voter, the duty to vote on all these issues is downright silly.

It isn't just that -- voting for some local judge or something is silly. During the primary, I had to vote for party convention delegates. Other than who my local pol supports, I had no idea. Even doing an Internet search for some of these people doesn't amount to much.

Civic duty is there as Shag says but really, realistically, there is a limit here.
 

the election returns are going to seem like...

How wise of you to return to vague utterances that avoid specific predictions! That way you don't get proved wrong again and again.
 

the myriad number of ballot measures a CA voter has to vote on

Yeah it's gotten ridiculous. Rivaled only by the money (hundreds of millios) being spent to push them, defeat them, and mislead the public about them. Some are out and out frauds from their creation.

Sad. Meant to be a citizen defense against legislative inaction.
 

When I was young and naive, I thought initiatives were a good idea. The abuse of the process over the last 30-odd years has convinced me that we should abolish them altogether. If a voter really tried to have a fully informed opinion on all the candidates for office, plus the statewide initiatives, plus the local ones, she would have no time for any other aspect of life.
 

Shag:

There is no such thing as a social contract into which people voluntarily enter upon birth. Rather, there are government payments and services to which people become accustomed to dependent upon.

Unless you are disabled, when most people grow up, they grow out of childhood dependences.

The same principle can and should apply to government dependences.
 

JPK:

How wise of you to return to vague utterances that avoid specific predictions!

I predicted Mr.Romney's coming victory and put money down on it back in July.

From the polling, I would say Mr. Romney is likely to get between 51% and 53% of the vote.

Barone joined my outcome prediction this evening.
 

Barone joins our yodeler? Marone! (aka morons!) Can't you just picture Etna erupting with this merger?

Granted, a newborn does not voluntarily enter into the Social Contract. But consider the new born a third party beneficiary, who may, upon reading Ayn Rand's "Atlas Shrugged" and her other garbage, opt out by becoming libertarians

Likewise, a newborn does not voluntarily accept the Constitution as his/her governing instrument in America but is bound by it

Our yodeler obviously pulled himself up by his own bootstraps, without any aid from government. Except that his source of income as a DUI legal specialist in the Mile High State involves mucho government subsidies.
 

From the polling, I would say Mr. Romney is likely to get between 51% and 53% of the vote.

This is useless since it does not distinguish between the popular vote (called "the vote" in every other country, as I believe Elizabeth Drew remarked in 2000), and the electoral vote.

I recall Boss Rove incredibly predicting Republican control of the Senate and the House in 2006, against all reported trends. The trope of "victory is ours, you blind fools" is a well known tool to discourage the opposition, and Republican hacks are using it now as well; along with quite a few tools of vote suppression.

But who cares about prediction? The events themselves will unfold in a few days. It remains to be seen if they unfold fairly, or if, as in Pennsylvania, poll workers are still illegally demanding voter ID; if, as was planned in Ohio, there will be a repeat of 13-hour voting lines; if, as in Florida in 2000, Republican staffers pretending to be locals obstruct the counting of ballots; if, as in Arizona in 1964, Republican "poll watchers" (allegedly including the late Chief Justice Rehnquist, who denied the charge at confirmation hearings) challenged and attempted to intimidate minority voters; and so on, a list too long for this commenter to place here.

"Acts of injustice done / Between the setting and the rising sun / In history lie like bones, each one." -- Auden
 

Larry:

Political operatives will always say their team is going to win. Rove in 2006 is no different from Axelrod today.

Predictions may be meaningless, but they are fun.

Politics is my favorite contact sport after football.
 

Our yodeler with this:

"Politics is my favorite contact sport after football."

demon-strates his need to wear a helmet.
 

Shag:

You should enjoy this. The bipartisan Battleground Poll has just agreed with my projection that Romney will end up with between 51% and 53% of the vote. They are projecting Romney 52%, Obama 47%.


 

More of our yodeler's stream of unconsciousness due to "helMITTlessness."
 

Er, Bart, did you click on the link the Weekly Standard article you linked to provided? It goes to a story saying Obama currently leads Romney...The WS article quotes, of course, only from the memo by the GOP half of the two pollsters involved.
 

Mr. W:

I cited the Battleground projection for the final election outcome including the most enthusiastic registered voters (likely voter screens over count the actual voters by about 20%) and project how the undecided break depending on their historical tendencies.
 

As usual, our yodeler cherrypicks, while disregarding the pits.
 

Shag:

Everything is coming up cherries jubilee.

Yesterday, Gallup reported that its survey of 3,312 registered voters found that, among the 15% of those who have cast their ballots to date, early voters are predominantly educated, elderly and breaking for Mitt Romney 52% to 46% over Barack Obama, nearly the same as the Gallup likely voter numbers.
 

Shag:

BTW, Obama's current early voting performance is 22 points lower than his performance in the 2008 Gallup polling.
 

Bart

Iirc the states that have added early voting since 2008 are rather red so I'm not too surprised by your early voting numbers showing Obama's lower performance (relatively) there.
 

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