Constitutional "moments"

Sandy Levinson

There may be less difference between Jack and me that might first appear.  One problem, perhaps, is my use of the term "constitutional moment."  It might suggest some kind of radical step function, but I agree with Jack that it's not that.  The mechanisms of the Iran Deal dramatize the very long-term accretion of presidential power that Steve Griffin and Mariah Zeisburg, among others, have written about.  Bruce Ackerman has emphasized the importance of shifting from formal treaties to "executive agreements" as mechanisms of foreign policy, though, of course, as with NAFTA or the perhaps forthcoming trade agreement, there's still a necessity for congressional approval, albeit fast-tracked.  Here, as Jack notes, Congress agreed in effect to waive any approval rights by setting the Iran Deal up so that the President could prevail so long as he was able to maintain 1/3+1 support in either the House or Senate (or could, by virtue of the support of 41 senators, prevent the matter from ever coming to a vote in the Senate at all).  Why did Republicans agree to this?  The most cynical explanation (which I find often works where congressional Republicans are concerned) is that they wanted to take a "free pass" on Iran:  This way they can beat up on Obama by claiming they would have been tougher negotiators, etc., not to mention their long-term efforts to attract more Jewish support (and money), without in fact having to take responsibility for torpedoing a deal and increasing the odds of yet another unfortunate Middle Eastern war.

But this depended on the premise that Democrats would in effect behave like Republicans, i.e., remain cohesive, especially considering that it's their current President and 2004 candidate who negotiated the deal, with the apparent approval of their presumptive next candidate, Hillary Clinton.  It's still worth noting that an important agreement (whatever we call it, and I'm not at all sure that it matters all that much what the nomenclature is, though lawyers obviously insist that nomenclature matters) will be made without the notional support of a majority even of one house of Congress, which is further development toward executive authority.  But this model depends on everyone playing his/her assigned role.  Republicans are entitled to sound like mad dogs, while Democrats rally around their President.  Perhaps it'll still work out that way.  Chuck Schumer is hard to take seriously as a serious thinker, rather than political tactician, and it is hard to ignore his obvious motives to desert Obama.  Recall Tip O'Neill's comment that "all politics are local," coupled with Jesse Unruh on money being the mother's milk of politics. 

But what if Schumer leads another dozen or so Democratic senators to desert Obama, and what if the apparent lock on upholding a veto disappears in the House?  They we have the phenomenon that I am describing, which would take us back at least to Versailles:  The repudiation of the major foreign policy decision by a sitting President, which could be defended if and only if one is prepared to say that one simply doesn't trust his and his Administration's judgment on an issue that is linked to matters of life and death.  I think this is the very definition of "no confidence" as an empirical, albeit not a "legal," notion.

Such a repudiation wouldn't count as a "constitutional moment."  That I certainly agree with.  Where Jack and I probably do disagree is whether it would wreck the remainder of the Obama presidency (and the presumptive campaign of Hillary Clinton).  I think the answer is yes.  I think this would be equivalent of the failure to ratify Versailles (or, perhaps, to have rejected Lend-Lease in 1940).  The Wilson presidency would have been wrecked even had he not suffered his stroke.  And if it goes down because of Democratic opposition, then what will Hillary do?  Will she bewail the defeat, because she agrees that it is in fact a good deal, all things considered in a world where the United States is no longer the Roman hegemon?  Or will she come out against it and run as the Democratic Lindsay Graham?  Either way, her candidacy will suffer a grievous defeat, and the Democratic Party will be highly fractured.  (If it goes down, then I assume that Congress will vote, over Obama's veto, to raise military expenditures by cutting domestic expenditures, since mad-dog Republicans will never accept a tax increase.  Or are we supposed to think that our present military can fight an ever-increasing number of wars?)

And, incidentally, it is a perverse feature of bicameralism that it promotes strategic voting and, therefore, irresponsibility.  Just as House Republicans were encouraged to impeach Clinton in 1998 because they knew to a certainty that a sufficient number of Democrats would not vote to convict--it's inconceivable that Republicans really would have wanted a President Gore who could run as an incumbent in 2000--so Schumer and his ilk may well have merited confidence that Nancy Pelosi will save the Deal by solidifying the necessary 1/3+1.  So why should he rise above his narrow political interests and take a hit for the home team, when, thanks to bicameralism, the home team will win whatever he does?  Obviously, one has to assume that enough House Democrats, who might be under the same pressures, will decide to vote for the Deal.  One of the enduring realities of American politics is that members of the House generally detest senators, and I suspect that Schumer's grandstanding will reinforce this tendency.

(I leave open the possibility that Schumer really and truly believes that the Deal constitutes a genuine danger to the country.  In that case, he is under a duty to become the active leader of the opposition and solicit votes not only in the Senate, but also in the House.  In any event, I certainly hope that Dick Durbin will run against Schumer, who was also bad on the Affordable Care Act, for Democratic leader.)

Finally, as always, I'm struck by the devotion that Americans have to our constitutional system.  Increasingly, that is itself evidence of American exceptionalism inasmuch as few, if any, contemporary constitutional designers take the US Constitution as a model rather than a cautionary example. 
Posted 6:04 PM by Sandy Levinson [link]