Monday, April 24, 2006

West Wing and the Constitution

Sandy Levinson

Fans of "West Wing" got an interesting lesson last night in one of the manifest inadequacies--some of us would say "stupidities" or "dysfunctionalities"--of the U.S. Constitution. For those of you who missed it, President Bartlett has put thousands of American troops between Russian and Chinese armies somewhere in central Asia. The new President-elect, Matt Santos, is (rightly) dubious of the President's policy (though he, like Bartlett, is a Democrat). It is made absolutely clear to Santos that he is "merely" the President elect and, therefore, has no authority whatsoever until inauguration day, which, of course, occurs a full 10 weeks after the election. It is inaccurate to view Bartlett as a "repudiated" President (unlike, say, Hoover in 1932, Carter in 1980 or Bush in 1992), but the West Wing, not for the first time, did their viewers an important service in pointing to the way that we are disserved by a system that allows a true lame-duck to make very important decisions that can well prove albatrosses around their successors necks. Recall that George H. W. Bush placed American troops in Somalia in December 1992, much to the detriment of the Clinton presidency. No contemporary constitutional designer, I am confident, would advise his/her client to adopt anything close to the American system and its long hiatus between election (and, therefore, the granting of democratic legitimacy) and inauguration (the granting of legal authority).

It used to be worse, of course. Until 1933 (and the 20th Amendment), inauguration day was March 4. This meant that there was, as a practical matter, no genuine government of the United States between November 1932-March 1933 in terms of someone willing and able to make important decisions with regard to combatting the Great Depression. The 20th Amendment did indeed make things better, but it should be obvious that January 20, both metaphorically and literally, is closer to March 4 than to November 8.

It would obviously be a good idea to become like almost all other serious countries in the world and devise an election-inauguration process that limited the length of the hiatus. (In the UK, for example, the newly elected Prime Minister moves into 10 Downing Street literally the day after designation by the Queen as such.) There are, of course, limits in what the US can do because of another terrible feature of our Constitution, the Electoral College and the felt need to take time to hold a meeting of the various electors in December and then, should there be a deadlock, wait until January to select the President.

I am happy to say that the Oxford University Press will be publishing a book of mine in October, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It) that discusses the "hiatus problem," the electoral college, and much else. In any event, we all owe thanks to a truly marvelous television program for, once again, bringing important constitutional issues to the public's attention in an especially vivid way.



The 2006 National Security Strategy of the George W. Bush administration points to the significant increase in democracies since the end of WW II and especially after the Cold War. I understand that very few of these new democracies have adopted the format of the US Constitution, opting for a parliamentary system. Perhaps Prof. Levinson's new book may explain why.

The long gap between election and inauguration is an archaic survival from the days when it took a long time to gather election results and get people to the capital city. It's now dangerously archaic.

After a change of presidency, right after election day, the Vice President should immediately resign, the President should nominate the President-elect as Vice President, Congress should immediately confirm that nomination, and the President should resign.

But this is unlikely to happen, because it treads on the sensibilities of an outgoing President. It's even unlikely in the 1988-89 situation where all President Reagan would have had to do was resign for the President-elect to take office.

Perhaps the worst thing about the current 10-week gap is that incoming Administrations frequently don't feell they need to have a clue about who they are going to put into key Cabinet and other government positions. The reason the British system works so fluidly is that an entire Shadow Cabinet has been at work for years in advance, and they can all move directly into their offices. American Presidents-elect are by contrast the laziest political leaders on the planet.

Would that extend to suspending the President's pardon power during the transition? Or are we only discussing the flaws of Republicans?

Interesting post on the Constitution, not so accurate on "The West Wing." As became clear toward the end of the episode, President-elect Santos is collaborating with President Bartlett in a coordinated strategy aimed at defusing the crisis. Santos's misgivings as expressed to the Chinese are part of the strategy. (I confess that I haven't followed the plot enough to know exactly how the strategy is supposed to work.)

I wouldn't be surprised if Prof. Vikram Amar over in Findlaw discusses the filling of the VP slot. He and his brother are interested in such questions.

As to the immediate issue, I think there would still be some interregum, more than one day. But, the problem/intervention here arose before the election.

So, what would we do? Not allow wars and so forth (unless really really necessary) within some x period around Election Day?

The problem will always exist, just somewhat reduced. Jan. 20 might be too late, but we can imagine the devious would not need much time to intervene.

In your haste to malign the Constitution - with its "manifest inadequacies--some of us would say 'stupidities' or 'dysfunctionalities'" - you seem to forget that the delay between election day and inauguration day is not the fruit of the Constitution. The date and time of the inauguration is a §1 of the Twentieth Amendment, but help me out here, Sandy: which clause of the Constitution specifies that "The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President"?

Contempt is one thing, but flagrant misrepresentation is another.

As usual, Sandy Levinson is probing the depths of a very interesting legal construct and devising novel approaches.

Although I dissent from some of the historical comments in the opening remarks, to be fair, I should read the forthcoming book, as context is important.

I had thought about the symmetry of the October surprise and the Sudan expedition bookending that one presidency, but now Sudan remains a very contentious tale in the news, one about which I prefer to study rather than to ascribe its instrumentality as invoked in the case for reducing the impact of lameduck strategies.

Some effects are reversible; consider Clinton's parting categorization of wilderness roadless areas, a policy quickly nullified by regulatory rulemaking means in the subsequent administration within weeks following the election.

I would like to add here a link to an excellent legal commentary; and, by all means, follow the link provided on that site to the Washington and Lee Law Review article, a substantial sixty-page pdf.

I am glad that both professors are interested in this important field in law as it affects the presidency in our constitutional system.

Simon is right that the Constitution does not establish November as the time for our elections. That is done by statute. The practical problem is that the Constitution DOES--I think, as does Akhil Reed Amar, stupidly--require election by the Electoral College, which does require that some significant hiatus exist between election and inauguration in order to allow for the possibility of deadlock and, therfore, selection by the new Congress meeting in early January. One might shorten the hiatus if, for example, election day were early December instead of early November, and that would be progress with regard to the "hiatus problem." But, not surprisingly, it would only generate others, including heightening the difficulty of presidential transition. And this necessarily leads to a further discussion of whether we are well served by a quasi-monarchical conception of the presidency by which we vote for a discrete individual without having a firm idea of whom he/she will appoint to head our most important national departments. Far better a "shadow government." But that, of course, requires a far longer post, on another occasion.

sandy levinson

The practical problem is that the Constitution DOES--I think, as does Akhil Reed Amar, stupidly--require election by the Electoral College

This 2001 column by the Amar brothers explains how to, and endorses, a plan to circumvent the electoral college. So I'm not sure what you mean by saying he "require[s]... the Electoral College."

Sorry, forgot to include a link.

The Constitution doesn't demand a November election, but it sets the date the president-elect can take office.

The old statutory March date was customary, but was cemented somewhat by the "fourth day of March next following" deadline for picking the President under the Twelfth Amendment's provisions for deadlocked elections (you remember, that rusty machinery that was nearly invoked in the 2000 election).

The March date was bumped up to January 20 by the Twentieth Amendment, which was proposed, ratified and adopted all between April 1932 and January 1933.

The reasons why that Amendment was suddenly considered a great idea -- namely, the almost inexplicable actions taken between November '32 and March '33 by Cactus Jack Garner (vice-president-elect and sitting Speaker of the House) that just happened to wreck the banking system, drive the Dow to its all-time low of 31 just days before he and his ticket partner FDR were sworn in, and set the table perfectly for "The 100 Days" that followed, is frankly one of the more remarkable forgotten Constitutional crises. It ought to be in Mr. Levinson's article.

(See, e.g., THE FIRST NEW DEAL, by FDR confidant and NEWSWEEK founder Ray Moley)

There are indeed a number of suggestions to "circumvent the electoral college," though out-and-out elimination would surely require a constitutional amendment. The most recent proposal that I'm aware of involves the eleven largest states entering into a compact with one another to direct their electors simply to vote for the person who comes in first in the national vote. This is well worth discussing, but it does not address a major problem with first-past-the-post electoral systems, which is the propensity to elect persons who did not (and quite possibly could not) get true majority support. Consider that Truman, Kennedy, Nixon (1968), Clinton (both elections), and Bush (2000) failed to win a majority of the vote. (I put to one side the fact that it now appears that Kennedy, as well as Bush (2000) came in second in the popular vote as well.)

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