Sunday, July 31, 2011

Stanley Greenberg is the latest dot non-connector

Sandy Levinson

The Democratic pollster Stanley Greenberg has a very interesting piece in today's NYTimes in which the principal question is why a Democratic Party that in fact is the majority party issue-by-issue is in such precarious shape as a political party. I won't go through his whole argument; you should read it yourself. But I do want to highlight several of his specific statements:

1) I see clearly that voters feel ever more estranged from government — and that they associate Democrats with government. If Democrats are going to be encumbered by that link, they need to change voters’ feelings about government.

2) ... [V]oters show they are fairly cynical about Democratic politicians’ stands. They tune out the politicians’ fine speeches and plans and express sentiments like these: “It’s just words.” “There’s just such a control of government by the wealthy that whatever happens, it’s not working for all the people; it’s working for a few of the people.” “We don’t have a representative government anymore.”

This distrust of government and politicians is unfolding as a full-blown crisis of legitimacy sidelines Democrats and liberalism. Just a quarter of the country is optimistic about our system of government — the lowest since polls by ABC and others began asking this question in 1974. But a crisis of government legitimacy is a crisis of liberalism. It doesn’t hurt Republicans. If government is seen as useless, what is the point of electing Democrats who aim to use government to advance some public end? (emphasis added)

One can quibble about whether Republicans don't also pay a price. Indeed, I think it may be a mistake to identify Tea Partiers with the institutional Republican Party, whose demise in some ways we are seeing in front of our eyes. It is clear that Tea Partiers properly view Mitch McConnell and John Boehner as opportunistic and completely cynical charlatans. And, of course, many Democrats have been wondering over the past month or two whether Barack Obama actually has any deep commitments that he's willing genuinely to fight for instead of rushing to make pre-emptive concessions to people who wish him (and the political coalition he so brilliantly put together in 2008) an unglorious demise. If such a deal is announced later today or tomorrow, I suspect that the sigh of relif will be mixed with sheer and justified rage at these "leaders'" willingness to take the country to the edge of the cliff for their own political purposes. (In my own cases, I have to remember that I think it is profound error to "personalize" our politics and thus turn away from the blame that should be attached to our Constitution and the dysfunctional political system it created.) If anyone believes that the not-so-grand bargain to be announced in the next 24 hours will lead to an uptick of "confidence" in our form of government, they are crazy. Anyone who doesn't feel "estranged" from our government is deluded.

But, of course, Greenberg is no more willing to connect the dots between our "system of government" and our decidedly defective Constitution than is anyone else with access to the New York Times. He makes the usual calls for campaign reform (with zero probability of being passed or, many would argue, of actually making a beneficial difference).

Consider, though, a conference that will be held at Harvard in September, co-sponsored byFix Congress First (organized by Larry Lessig), the Harvard Law School, AND Tea Party Patriots, precisely for the purpose of considering the need for a new constitutional convention. The Tea Party, as I've written before, is willing to connect the dots, for which they deserve at least one cheer. The fact that I disagree strongly with repealing the Seventeenth Amendment or adopting Randy Barnett's "Repeal Amendment" (though for reasons that might surprise some of you) is not at all the same thing as adopting the rhetoric of our "basically perfectly Constitution" that is the motif of too much of the response to Tea Party proposals. Precisely because it will be a truly "bi-partisan" (but not Tom Friedman's brand of "centrist") gathering, I suspect it will be unusually interesting and will potentially get some coverage even by the
Mainstream Press.

For what it is worth, I suspect that had public opinion polls and focus groups been available around 1775, at least a quarter of the population would have had confidence in the government of His Majesty King George III and been optimistic about the future. (There were, after all, quite a few Loyalists, even though we rarely learn about them.) Do we face a "revolution"? No. But do we face the possibility of significant "regime change" in the future. After all, the House of Representatives, as I've argued earlier, is basically claiming to be America's Parliament. Perhaps the House will in fact accept the "Grand Bargain," but will it get more than the minimum number of Republican votes to constitute a majority together with the far larger number of Democrats. Will John Boehner remain the Speaker, at least so long as that decision is up to the Republicans, led de facto by the "lean and hungry" Eric Cantor? And, of course, there will be the international consequences of America's decline as the "indeispensable" (military) power, because we can no longer afford to play that role.

In any event, I look forward to reading Mr. Greenberg's next piece in, say, six months, especially if the "estrangement" takes ever more visible form as ordinary people realize what the "Grand Bargain" will mean to their hopes for their (and their children's) futures.

Friday, July 29, 2011

End the debt crisis now with a credit default swap!


Lest anyone be confused, what follows is not a serious proposal. It's designed to show the absurdity of the current debt ceiling crisis, which is based on faulty views of what a federal debt ceiling actually accomplishes.

* * * * *

President Obama has demanded a solution to the debt ceiling crisis by this Tuesday. He doesn't seem to like invoking the Fourteenth Amendment or creating jumbo coins. Congress can't seem to do anything. What's left?

Financial derivatives helped get us into the current economic mess. So why not use derivatives to get us out?
Read more »

Lessons From the States on the Debt Ceiling Crisis

Guest Blogger

David Super

One point that I find curiously missing from this discourse is that constricting debt limits are not at all unusual features in American public law. Many state and local governments have them, and many of those are as unrealistically low as the federal one. Many of these first arose in the late nineteenth century as a Jacksonian reaction to businesses (mostly railroads) taking over governments and then assuming vast amounts of debt to provide sweetheart loans to the businesses (e.g., paying the cost of connecting their town to this or that emerging railway). With balanced budgets seeming to be the sole of fiscal probity in the public's imagination, explaining why debt limits should rise has not been easy. As a result, many of these debt limits have been stuck at unrealistically low levels, as the federal debt limit is today.
Read more »

Economic Class and Federal Judgeships

Jason Mazzone

At this time of year, many students are looking for law review note topics. I have a topic that would make for a nifty student note: how has the economic class of nominees to the federal bench varied over time? Or, put differently, how rich do you need to be today to be nominated to a federal judgeship? I was reminded of this topic (one I would investigate myself except I have too many other projects) by the news this afternoon that President Obama has nominated Ronnie Abrams (Upper East Side, the Dalton School, father a big firm partner) to the Southern District of New York. A student interested in this topic has easy access to the relevant data. Nominees to the federal bench are required to answer an extensive questionnaire and to disclose information about their employment history and net worth. A little sleuthing will turn up additional useful information, such as the occupations and educational backgrounds of the nominee's parents, that would allow for an analysis based on multiple criteria. The note could look at variations over some period of time--say the last twenty years--in the economic status of nominees. Differences between nominations made by Republican and Democratic presidents could be investigated, along with any differences between male and female candidates, among nominees of different racial backgrounds, between district court and circuit court nominees, between younger and older nominees, and so on. I hope that somebody will take up this topic--and if you do, please share your results.

Obama is already invoking the 14th Amendment


Some Democrats in Congress, including Steny Hoyer, have called for President Barack Obama to invoke the 14th Amendment to resolve the debt ceiling crisis.

What they don't realize is that Obama has already invoked it in effect. Despite his statement that his lawyers told him it wasn't a "winning argument."

Read more »

Thursday, July 28, 2011

Revising the Constitutional Text

Gerard N. Magliocca

I just finished Pauline Maier's wonderful book on the ratification of the Constitution, which includes a section on the Bill of Rights. She notes that James Madison originally wanted to insert any amendments directly into the text and change any parts of the 1787 document that were inconsistent with them. Roger Sherman of Connecticut, however, objected to this approach. He wanted the amendments attached to the end of the Constitution. Why? His explanation was that the original document was "sacred" (he was obviously not reading Sandy's work) and should not be touched. Besides, Sherman said, Madison's approach would imply that the delegates who signed the Constitution in Philadelphia had agreed to any subsequent changes. Madison relented to Sherman's demand get the two-thirds supermajority that he needed in the House of Representatives.

I wonder how constitutional law would be different if Madison had gotten his way on this issue. Forcing Congress to consider the implications of an amendment on the rest of the text and make any necessary changes may have made its intentions clearer. That would not be true, of course, for amendments that were very specific (the repeal of Prohibition, for instance), but something like the Fourteenth Amendment would be a different story. On the other hand, perhaps Sherman was right in the sense that reading Article Five as Madison wanted would have increased the difficulty of getting amendments through Congress and that the added clarity was not worth the political cost.

Some questions for Americans Elect

Sandy Levinson

The LA Times has an intersting story about Americans Elect, Tom Friedman's new enthusiasm as the way to provide a third (or perhaps fourth, should the GOP nominate Mitt Romney) party. Its own web site is stunningly unilluminating. AE appears to speak in the language of hi-tech populism, whereby all of the self-apponted "delegates" will choose, on a one-person/one-vote basis, the party's nominee sometime in the spring or early summer of 2012. A remarkable number of questions are left hanging that need answering before others follow the effervescent Friedman into Americans Elect:

1) I will put to one side the question about who exactly is funding this operation and why. Will a third party appealing to "independents" be more likely to help or hurt Obama, for example, and, therefore, elect a Republican, inasmuch as it's wildly implausible to imagine the AE candidate winning an electoral college majority?

2) How, exactly, will the AE nominee be selected? Will it be first-past-the-post of votes received from the self-selected "delegates"? Will there be elaborate run-off schemes? Or will they adopt "approval voting" and run the person who is most widely "approved," even if that person comes in second or third in the horserace? There is, I think, much to be said for the use of "approval voting" in this context.

3) How will electors for the nominee be selected, since, as we all know, this great country of ours actually selects its presidents by using an indefensible originally pro-slavery scheme that rejects anything so simply as "direct election" of our Chief Executive? More to the point, will these electors be required to take a blood oath as to whom they will vote for if the AE candidate actually wins a state but not a majority. I have read that AE has said that if no candidate gets a majority (and, presumably, the AE candidate comes in third), then the AE electors will choose between one of the major party candidates in order to avoid the fiasco of having the rabid House of Representatives make the choice, on a one-state/one-vote basis. All fine and dandy, but

4 a) who will make the decision as to how the electors will vote, and if it's not the electors themselves (because, for example, there would be a new plebescite among AE "delegates") then b) what guarantees are there that the electors would "follow orders" if they believed that the "other" candidate should be elected instead of the one chosen by the self-appointed "delegates"?

5) And, of course, there is the ultimate problem that the AE seems concentrated entirely on the presidential election. So we would face the possibility, under the only half-way plausible "best case" for their venture, that their candidate would get the presidency by cobbling together a bare majority of the electoral college with, say, 36% of the overal popular vote and receiving a majority in no single state at all. Why would one regard that President as having any genuine political legitimacy, and why in the world would one expect a Congress that continues to be composed of political partisans to take that president seriously?

In any event, these are some immediate questions that occur to this "inquiring mind."

Obama's Options


My piece on President Obama's options in the debt ceiling crisis-- ranging from jumbo coins to section 4 of the Fourteenth Amendment-- is on, Here's the part about the most likely scenario if no deal is reached, and the role that section 4 would play:
Like Congress, the president is bound by Section 4 of the 14th Amendment, which states that "(t)he validity of the public debt of the United States, authorized by law . . . shall not be questioned." Section 4 was passed after the Civil War because the framers worried that former Southern rebels returning to Congress would hold the federal debt hostage to extract political concessions on Reconstruction. Section 5 gives Congress the power to enforce the 14th Amendment's provisions. This does not mean, however, that these provisions do not apply to the president; otherwise, he could violate the 14th Amendment at will.

Section 4 requires the president not to put the validity of the public debt into question. If the debt ceiling is not raised in time, there will not be enough incoming revenues to pay for all of the government's bills as they come due. Therefore he has a constitutional obligation to prioritize incoming revenues to pay the public debt: interest on government bonds and any other "vested" obligations.

What falls into the latter category is not entirely clear, but a large number of other government obligations -- and certainly payments for future services -- would not count and would have to be sacrificed. This might include, for example, Social Security payments.

To be sure, the president could keep paying Social Security if he could keep the total amount of debt constant by redeeming bonds in the Social Security trust fund for cash and immediately selling new bonds to replace them. But the money coming in may not be able to keep pace with the money going out. Even if he tries his best, the president may not be able to pay every Social Security check in full on time.

If the president stopped paying parts of Social Security or other government programs that the public relies on, we would have a partial government shutdown. This would quickly put enormous pressure on Congress to raise the debt ceiling to make it possible to resume normal government operations.

Thus, even if Social Security and other social safety net programs are not part of "the public debt," under Section 4, failure to pay them promptly and in full will probably lead to a political solution to the debt crisis within a week or so. The closest precedent is the 1995 government shutdown precipitated by the Republican-controlled Congress' battle with President Bill Clinton.

Read other posts on the debt ceiling crisis

Tuesday, July 26, 2011

An interesting disconnect

Sandy Levinson

The current Intrade possibility of Congress passing a debt-limit increase by July 31 is 16.2% (i.e., roughly one in six). By definition, this means that Intrade participants believe there is an 83.8% probability of default. Yet the markets are behaving well within ordinary swings, and I suggested in my earlier post that traders basically don't believe the talk that there's really a "crisis," since it would be lunatic to default (and therefore it won't happen). (I assume that traders do not believe, like Michelle Bachman, that a default would be no big deal.)

So does this suggest that those who participate in Intrade (which I don't, though I am obviously following it with great interest) are unsophisticted? They may know something about markets but not about politics (or about the implications of our particular constitutional structure). In any event, what implications does this disconnect have to the "wisdom of crowds" hypothesis? Should we in fact distinguish between the "experts" (the traders) and the rubes (those who are presumably buying Intrade futures that there will be default? Or are the traders the dunces?

"It's incredible"

Sandy Levinson

I'm not referring to the idiocy that has taken over our national political system. That is all too credible, given both the contemporary zeitgeist, our defective Constitution, and the consequences of systematic congressional-district gerrymandering that has turned the Republican Party over to Tea Party lunatics.

Rather, I think it worthy of not that almost no one belives the United States Government these days. That, I take it, is the meaning of the soporific market reaction. Sophisticates, rightly or wrongly (I think wrongly) believe that because default would be lunatic, catastrophic, cataclysmic, etc., then it won't happen. (I invite you to reread by posting from last week reminiscing about the Cuban Missile Crisis.) So it really doesn't matter what Obama, Boehner, or any other public official says. The view is that they're all posturing, playing, a la the Weimar parliament, to their bases, but that, at the end of the day--or 11th hour--rationality will take over, and the chumps will be those who took the threat of default seriously. (I wonder how many of you would be willing to pay me, say, $40, for my 100-1 wager (where I win $100 if we default).)

But, of course, it's not simply the shouting about default, or, for that matter its consequences, since part of the Tea Party lunacy, led by the egregious Michelle Bachman, is that default really won't matter (rather than generate one of the largest tax increases in our history, known as rising interest rates on any future debt by any and all levels of government, for starters). Rather, the right wing has now made a fetish of rejecting anything the government might say about global warming. Many on the left, like myself, see no reason to believe much that the government says about foreign or military policy these days.

A few of us are old enough to remember the birth of the "credibility gap" during the Johnson Administration. It's alive, well, and pervasive. Is it of "constitutional import"? Well, how can a government govern if no one really trusts even leaders one voted for, let alone the opposition? I don't think the Constitution is to blame for that, incidentally. One has to look elsewhere. James Stewart has a new book out (which I've not read) that argues that our culture is one where we simply don't expect people to be truthful anymore. (That's the brilliance of Stephen Colbert and "truthiness." John Kyl lies through his teeth about Planned Parenthood. Just accept it. Every now and then lightning strikes a liar--Martha Stewart, (maybe) Roger Clemons--but no serious person could believe that they are more than a sideshow to the basic problem. Jimmy Carter said he'd never lie to us, and I'm not sure that he violated that pledge. But even at the time that was regarded as the height of naivete, because of course we expect our presidents to lie whenever it's convenient to achieve their agenda.

Political Brinksmanship

Gerard N. Magliocca

I was going to post something serious about the ongoing debt ceiling negotiations, but on reflection I think that this gem from the British comedy series "Yes, Prime Minister" that I put up on Concurring Opinions a while ago does a better job of describing where we are. The scene is a conversation between the Prime Minister, Jim Hacker, and the Cabinet Secretary, Sir Humphrey Appleby, on nuclear deterrence of the Soviet Union.

Sir Humphrey: With Trident we can obliterate the whole of Eastern Europe.

The PM: I don’t want to obliterate the whole of Eastern Europe.

Sir Humphrey: It’s a deterrent.

The PM: It’s a bluff. I probably won’t use it.

Sir Humphrey: Yes, but they don’t know that you probably wouldn’t.

The PM: They probably do.

Sir Humphrey: Yes, they probably know that you probably wouldn’t. But they can’t certainly know.

The PM: They probably certainly know that I probably wouldn’t.

Sir Humphrey: Yes, but even though they probably certainly know that you probably wouldn’t, they don’t certainly know that, although you probably wouldn’t, there is no probability that you certainly would.

Monday, July 25, 2011

Tom Friedman and David Patraeus

Sandy Levinson

Tom Friedman calls for a revolt by the "radical center," which takes the form of a thid party to be nominated by the equivalent of a multi-month "internet convention" that will winnow down candidates and then choose two, but not from the same political party, to run as candidates for the presidency and vice presidency in 2012. Apparently, this is well-funded, and steps are already on the way to get the candidates of Americans Elect on the ballots in all fifty states. There's much that could be said about this in terms of my repeated criticisms of Friedman for a basic unwillingness to connect the dots. (He does not, for example, seem to recognize that legislation emanates from the Congress, and his breathless endorsement of Americans Elect doesn't speak to this reality, nor to the the even more stunning reality that the most likely consequence of "success" is to throw the election into the House of Representatives, which votes, recall, on a lunatic one-state/one-vote basis (though, politically, I'm delighted that Vermont will balance out Texas, though less charmed that Allaska or Wyoming together will outweight California, but, hey, that's just our dysfunctional Constitution).

Rather, let me suggest that Friedman, consciously or not--I suspect the latter--is setting the stage for "we the people" to draft David Petraeus as the alternative to the leadership of Obama and John Boehner alike, which Friedman seems more than happy to trash (though he helpfully suggests that Obama should leave the Democratic Party and run instead as the Americans Elect candidate as the mugwump that he really is). Petraeus, of course, will not announce any such candidacy and will make suitable noises about discouraging it. But will he issue a Sherman statement. The awful truth is that there are not "reasonable candidates" waiting in the wings (or, at least, Friedman doesn't name a single one. He writes like a six-year-old who's been given a brand-new toy, and he's so excited he almost literally doesn't stop to think. But let me suggest that Michael Bloomberg is not going to emerge as "the people's choice," nor will anyone else who now holds elected political office jump to seize this opportunity (not least because it would mean the end of their political careers unless, of course, they happened to win). There's only David Petraeus, the most favorably-publicized (now) ex-general from the most trusted institution in America, the military. So who gets tapped to be his VP? Colin Powell? (Though he's now probably too old.)

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.

Saturday, July 23, 2011

Imaginative Constitutional Histories, Executive Unilateralism, and the Debt Ceiling

Marty Lederman

In the New York Times yesterday, Professors Eric Posner and Adrian Vermeule argue that if the President and Congress cannot agree upon legislation that will avoid largescale default on the debt, the President can and should "raise the debt ceiling unilaterally," presumably by creating new "obligations" (i.e., borrowing funds) beyond the limit that section 3101 of title 31 currently sets. They do not, however, argue that the President has the constitutional authority to do so by virtue of the Fourteenth Amendment, a possibility that has been the subject of many posts by Jack, Larry Tribe, Neil Buchanan and Mike Dorf, here and on Mike's blog -- and a constitutional argument that the President himself appeared to reject yesterday. Indeed, it's not obvious that Eric and Adrian think that default would result in a Fourteenth Amendment violation at all, or that they care about that question in the slightest -- their argument is, instead, that the President can take such unilateral action in violation of statute even if the default would not be unconstitutional.

"The 14th Amendment," they write, "is a red herring": the President could unilaterally incur further debt "even if its debt provision did not exist."

What's their theory for such a striking unilateral Executive power? It's this: "[T]he president would derive authority [to borrow in violation of the law] from his paramount duty to ward off serious threats to the constitutional and economic system." The "serious threat" in question here would be the risk that the nation would be thrown "back into recession." (It's worth noting, in passing, that it's not at all obvious that P&V's suggestion wouldn't exacerbate the "serious threat"--is it really plausible, for instance, that other nations would lend us trillions of dollars on the President's say-so that he has some unilateral authority to incur such debts even when barred by statute, and his assurances that the U.S. will repay such debts in the teeth of congressional opposition and the furor that would result if the President so acted? For purposes of this post, however, I'll assume the counterfactual that Eric and Adrian's proposed course of action would, in fact, avert the "serious threat to the economic order.")

The Constitution does not, of course, mention or imply any such "paramount duty" of the President to violate statutes in order to "ward off recession or other serious threats." So what is Posner and Vermeule's authority for such a duty? Perhaps there is some historical support for it.

Eric and Adrian assure us that there is -- indeed, they invoke authorities no less august than Lincoln and FDR.

Just because our greatest Presidents did something doesn't make it constitutional, of course. But if Lincoln and FDR both acted upon, or even claimed, a particular constitutional authority, it stands to reason we should consider it seriously, at a minimum.

So, do Posner and Vermeule's historical examples provide the support they need?
Read more »

Friday, July 22, 2011

Science Communication vs. Soulcraft

Dan Kahan

President Obama has recently been taking heat from environmentalists, most conspicuously Al Gore in a recent Rolling Stone essay, for not using his “bully pulpit” to force the public to attend to the threat posed by climate change. “By excising ‘climate change’ from his vocabulary,” said one critic, “the president has surrendered the power that only he has to explain challenging issues and advance complex solutions for our country.”

I definitely agree that President Obama should be taking the lead to improve public comprehension of climate change science. But I suspect I have a very different opinion on what the President should be trying to communicatealso how and when. What the public needs, in my view, is not more information about climate change, but a new, more inclusive set of cultural idioms for discussing this issue.
Read more »

Why Obama won't invoke section 4, continued


At a town hall event in College Park, Maryland, President Obama swatted away suggestions that he invoke section 4 of the Fourteenth Amendment to issue new debt despite the debt ceiling, noting that he had "talked to [his] lawyers and "they are not persuaded that that is a winning argument."
Now, the gentleman asked about the 14th Amendment. There is -- there's a provision in our Constitution that speaks to making sure that the United States meets its obligations. And there have been some suggestions that a President could use that language to basically ignore this debt ceiling rule, which is a statutory rule. It’s not a constitutional rule. I have talked to my lawyers. They do not -- they are not persuaded that that is a winning argument. So the challenge for me is to make sure that we do not default, but to do so in a way that is as balanced as possible and gets us at least a down payment on solving this problem. [...] But I’m sympathetic to your view that this would be easier if I could do this entirely on my own. (Laughter.) It would mean all these conversations I’ve had over the last three weeks I could have been spending time with Malia and Sasha instead. But that’s not how our democracy works. And as I said, Americans made a decision about divided government. I’m going to be making the case as to why I think we’ve got a better vision for the country. In the meantime, we’ve got a responsibility to do our job.

Obama's political strategy is to use the debt ceiling crisis to put pressure on both Congressional Republicans and Democrats to put together a big deficit reduction deal that will establish him as a reasonable moderate and "the only adult in the room" and help ensure his reelection in 2012. Therefore it makes no political sense for him to say that he can invoke section 4 and solve the crisis by himself. That would take all of the pressure off members of Congress (in both parties). (For the same reason, he prefers a big deficit reduction deal to a clean bill raising the debt ceiling or even the McConnell plan, which gives Congressional authorization for him to act unilaterally).
Read more »

On "winning arguments" in constitutional law

Sandy Levinson

This just in, re President Obama's "town meeting" at the University of Maryland today:

Mr. Obama for the first time addressed — and ruled out — the idea that the Constitution empowers a president to increase the debt limit to prevent default and, as he put it, “basically ignore” the federal law requiring that the debt ceiling be set by statute. The argument of “the constitutional option,” which President Bill Clinton — like Mr. Obama a former constitutional law instructor — endorsed in an interview this week, is based on the 14th Amendment’s provision that the validity of the United States debt “shall not be questioned.”

“I have talked to my lawyers,” Mr. Obama said, and “they are not persuaded that that is a winning argument.”

So what does "winning argument" mean in this context? A. An argument that would persuade the current United States Supreme Court, even if it is spectacularly unlikely that the Court would in fact ever address the issue, whether on standing or some other basically prudential grounds. B. An argument that would persuade a seminar at the Harvard or Yale Law Schools on the general subject of presidential power? After all, Laurence Tribe, one of Obama's mentors, has powerfully criticized the argument. But, of course, it is quite unlikely, as an empirical matter, that the Administration's argument about the meaning of "hostilities" in the War Powers Act would persuade any such seminars, even if the principal enabler of the Administration's policy is former Yale Law School Dean Harold Koh. So maybe "winning" is C. An argument that's at least "good enough" to enable me (the President) to do what I think is necessary in the current circumstances, against the background that it would create severe problems for the United States to run the risk of seeking formal congressonial approval for our open-ended intervention in Libya. Perhaps the Koh argument passes this test. But, then, why doesn't the Section 4 argument pass this test, especially if one assumes that Obama genuinely believes, as he must--otherwise there's no explanation, let alone justification, for his otherwise scandalous "compromise" with John Boehner--that default would be "catastrophic" for the United States and the rest of the world. Is he really going to be the most law-abiding President since James Buchanan, who was willing to let the country (illegally, from his point of view) dissolve because he viewed the United States as lacking the power forcibly to prevent it? How many lawyes has he talked to, who are they, and did none of them suggest that former President Clinton, himself a former professor of constitutional law, might be worth taking seriously as to presidential "emergency powers"?

Looking more like Weimar (in the '20s) every day

Sandy Levinson

During the heyday of the late, unlamented Bush Administration, I wrote a number of posts suggesting the value of reading Carl Schmitt, the brilliant political and legal theorist of Weimar Germany (who ended up supporting Hitler in the '30s). In The Crisis of Parliamentary Democracy, written in 1923, he argued, among other things, that Parliament was incapable of functioning because of the nature of the German party system. There was no serious sense in which Parliament was a forum for "deliberation," which requires, for example, that people with opposing views actually listen seriously to one another and possibly even be influenced by reason-based arguments from their opponents. Instead, if parliamentarians spoke at all, they really were speaking to their base outside the halls of Parliament and trying to rev them up for the near-warfare among the central parties. Since no one party had control of Parliament, thanks to the system of proportional representation, this meant the frequent invocation of Article 48 of the Weimar Constitution, which effectively transferred decisionmaking power to the German President: "If public security and order are seriously disturbed or endangered within the Reich, the President of the Reich may take measures necessary for their restoration, intervening if need be with the assistance of the armed forces. For this purpose he may suspend for a while, in whole or in part, the fundamental rights provided in Articles 114, 115, 117, 118, 123, 124 and 153."

Giorgio Agamben has noted that there were 250 invocations of Article 48 during the 1920's, all on grounds of "economic emergency." Obviously, this didn't involve "the assistance of the armed forces." It was enough that the President of the Reich ws empowered to take "measures necessary" or the "restoration of public security." It would be a piece of cake for the Reich President to justify, especially given the presence of Section 4 of the Fourteenth Amendment, a fiat decree. Rightly or wrongly (I think this is an open question), our law-abiding President has rejected this and appears willing to take us over the cliff, unless he can get the House Republicans to accept his all-but-unconditional-surrender.

The preferred Obama alternative seems to be a "grand bargain" that is basically negotiated by the President and the Speaker, with practically no one else participating until the "grand bargain" is announced, and at that point the role of congressional Democrats and Republicans alike is to obey orders and ratify whatever the "grand bargain" is. Whatever process this describes, it sure as hell isn't "democracy," "democratic deliberation," or a "republican form of government." But it does fit a model of how decisions are made in times of emergency.

Is it surprising, then, that in a recent poll of confidence levels in fourteen American institutions, Congress came in dead last? 48% have little or no confidence in Congress, and only 12% have "a great deal/quite a lot." The "presidency" looks far better: 35% have "a great deal/quite a lot," but the bad news is that 36% have "little or none," with the remainder having "some." confidence. The Supreme Court gets 39% "great deal/quite a lot" and "only" 20% "little or none." The first institution to get significant public support, re "confidence," is the police,
which has he strong confidence of 56% of those polled; only 13% are at the other end. What is the institution generating most confidence? It's the military: 78% have high confidence levels, and only 3% low.

So do these numbers have an "constitutional" significance? Then Lt-Col. Charles Dunlap, of the US Air Force, wrote a much-discussed essay in 1992 on "The Origins of the American Military Coup of 2012." As I've written before, I don't think this is anywhere close to a "clear and present danger" (though, as I've also written, I suspect the idea would seem more attractive to many if, say, Michelle Bachman or Sarah Palin actually were slated to become Commander-in-Chief of the United States armed forces). But, although I seem to be wrong in an earlier prediction that now former-Gen. Davie Petraeus--who has, of course, gone on to become the head of the C.I.A.--would become the GOP candidate in 2012, I can easily see a strong pro-Petraeus movement in 2016, following "four more years" of absolutely dysfunctional and increasingly chaotic "government" that leads serious people to wonder whether the United States--like California--is "ungovernable" because of a mixture of the pathologies of our political culture and the pathologies of our 1787 Constitution. So we don't get a "coup," but we do get the further militarization of the US Government because that's the only institution today that "We the People" really seem to have confidence in. (And, for what it's worth, I presume that we're talking about the truly "professional military," not someone like John McCain, say, who was a thoroughly mediocre student at Annapolis who got out of the military after his truly admirable heroism as a prisoner of war.)

And, incidentally, I'm not even discussing at this point potential responses to Oslo and the rise of ever more fanatically anti-Moslem movements in the US.

Thursday, July 21, 2011

Professor Connell's Accusers

Jason Mazzone

According to a press release issued by his attorneys, law professor Larry Connell of Widener University has been cleared of all but one of the allegations of misconduct brought against him in connection with his classroom behavior. The press release reports that following a three-day "trial," the university committee hearing the allegations dismissed all of the charges of racial and sexual harassment against Professor Connell but found that he violated a university anti-retaliation policy by e-mailing his students to contest the charges and by issuing a press release about them. Earlier this year, Professor Connell filed a defamation lawsuit against the dean of Widener University School of Law School for allegedly filing false disciplinary charges against him. Professor Connell later amended his complaint to add as co-defendants two students from his Spring 2010 criminal law class, who, he alleged, made false statements to members of the Widener administration alleging sexist and racist conduct by Connell in the classroom. For more background on the case, see Orin Kerr' discussion here and here.

A routine part of my job is to submit affidavits for former students applying to the bar. In completing those affidavits, I am required to state whether there is anything about the applicant's character that makes him or her unfit to practice law.

Are Professor Connell's student-accusers fit to practice law?

Read more »

Wednesday, July 20, 2011

A fight to the finish

Sandy Levinson

I begin with the fact that the folks who participate in Intrade currently see only a 21% chance (!) of Congress approving a debt limit increase by July 31 and a 60% probability of approval by the end of August. This obviously runs contrary to the complacence of the market, which appears to believe that the Kabuki will come to an end with the capitulation of Eric Cantor and his troops to the obvious necessity to increase revenues along with cutting expenditures.

I've earlier noted how this is in large measure a fight over the willingness of congressional Republicans, who have painted themselves into a corner, to make President Obama's re-election a lock by capitulating on taxes and reinforcing the impression that he is the only adult in the room. At lunch today, though, a colleague suggested that the Republicians have also managed to create a situation where Obama will benefit from default, So right now, at least, it look like win-win for Obama.

So whose future, besides Obama's and Cantor's (and all of the feckless Republican presidential wannabes), is at stake in this fight that will seemingly go down to the wire (and, perhaps, over the cliff)? The clear answer seems to be Grover Norquist, correctly described by David Brooks as someone who "enforces rigid ultimatums that make governance, or even thinking, impossible.” If one were writing a latter-day Gilbert and Sullivan ditty about "people who would not be missed," Norquist would surely be a strong candidate to head the list. He is, I think, the conemporary versino of Wayne B. Wheeler. "Who was he?" you might well ask. The answer, as Daniel Okrent explains in his marvelous book on the 18th Amendment and its aftermath, Last Call, is "the brilliant tactician who dominated the Anti-Saloon League" and "was considered--by a critic--'the most masterful and powerful single individual in the Unied States,' who 'controlled six Congresses, dictated to two Presidents [and] held the balance of power in both Republican and Democratic parties." Norquist (and Rush Limbaugh) hae become the puppetmasters of the Republican Party (see also Brooks's comment on talk-show bloviators who don't have to worry about actually governing), and Democrats are so scared actually to defend the obvious necessity of tax increases that they have allowed Pope Grover to dominate the discussion. My hope is that he will one day be as obscure as Wayne B. Wheeler. It would be a good start if Tom Coburn, the first Republican senator to attack the Norquist papacy, will give strength to other members of his own party. But one must face the unhappy truth that Coburn may feel liberated by the fact that he isn't running for re-election and therefore doesn't have to put up with Pope Grover's denunciations as a "liar" and therefore deserving of excommunication from the Church of no new taxes--regardless of circumstances. (If any Catholics take umbrage at my reference to Pope Grover, I'm more than happy to analogize him to a Chassic rebbe whose followers are sheep-like followers or to Jim Jones, who organized his own odd-ball religion that led to his benighted followers drinking the Koolaid.)

In all circumstances, what one has to explain is how these individuals can establish themselves in such positions of dominance, given that they'v never received a single vote from a member of the electorate whose lives they are able to dominate. Norquist did see something in the zeitgeist that would support anti-tax fanaticism, and he has ridden it to the top. In any event, I would be shocked if he did not pull out all stops to send the country into default, given that this is an acid test of his ability to dominate the Republican Party. The next week or so will say a lot about the level of American political dysfunctionality and whether we are indeed going over the cliff into "ungovernability."

Tuesday, July 19, 2011

Further illustrations of why formal rules matter

Sandy Levinson

In 2008, I think it's fair to say, Barack Obama got the Democratic Party nomination and John McCainthe Republican nomination because of the basic rules bywhich delegates were assigned. That is, the Democrats followed a principle of proportional representation; the Republicans, with a few exceptions insome states, followed the traditional "winer-take-all" rule. This allowed John McCain to get 100% of Missouri's delegates by getting 34% of the primary vote, as against Mike Huckabee's 32%. (And, of course, a number of other candidates shared the other 32%).

Presumably, it doesn't really matter what the 2012 rules in the Democratic primaries will be, as no sane person will run (or will be financed in) a campaign to deny President Obama renomination (however unhappy some liberals, including myself, may be with aspects of the Obama presidency). But what about the Republicans. I believe (though I can't quickly find confirming authority) that they have moved to proportional allocation. If that's correct, then perhaps one ought to put substantial money on the likelihood that the 2012 Republican convention will be the first truly interesting convention since 1952 (or, in their quite different ways, the 1968 and 1972 Democratic conventions) inasmuch as there will be no first-ballot winner. Consider that the current Intrade percentage for Mitt Romney is 33%, while the unannounced Rick Perry is at 26%, while Michelle Bachman is given a 70% likelihood of winning the Iowa straw poll. And so on. This also makes it even more unlikely that the winning candidate will have carte blanche to choose the vice-presidential candidate (as McCain did not in 2008, else Joe Lieberman would have been his choice).

It's going to be a really interesting year for political junkies, including those who are interested in how formal structures matter.

How the Constitution structures the debt crisis

Sandy Levinson

There are two distinct ways in which one has to understand how the Constitution strucures the current crisis. One obviously involves our tricameral legislative system and the fact that all three branches of the legislature--i.e., the House, the Senate, and the President--have to agree in order to get any legislation at all. So, as senators and the President are apparently giddy about a compromise reached by the Gang of Six that, according to NPR, could actually get the support of over 60 senators (i.e., a filibuster-proof majority), there is still the House, and whether Eric Cantor and his Tea Party minions will indeed capitulate and accept even one cent of added revenue. In the alternative, the question may be whether John Boehner junks the pernicious "rule" adopted by Dennis Hastert by which he refused to bring any bill to the floor of the House that didn't have the support of a majority of the Republican caucus (even if, by stipulation, it had the support of a majority of the House in general, once one added Democratic votes to a minority of the Republican caucus).

But there is a second way in which the Constitutionis at the heart of this imbroglio. As Obama well realizes, a "grand compromise," however much it will make political liberals unhappy, will absolutely assure his re-election, probably with 55% of the popular vote. That would probably be true if the Republicans had a truly serious candidate running for the office. But, note well, all of the current candidates, including Mitt Romney, have basically opposed any of the necessary compromises to get a grand bargain. Will Romney engage in another flip flop? Republicans, including, of course, Mitch McConnell have been obsessed with making Obama a one-term president not simply because it's a pretty important office, but because the Constitution, with minor exceptions, gives the President a "winner-take-all" control over the executive branch. This is totally different from 48 of the 50 states, which have rejected the "unitary executive" by allowing people to elect governors and other executive officials from different political parties. And, of course, even if they're from the same party, they may be rivals.

So the question before House Republicans, especially, is whether they are willing to compromise and erase the lines that Eric Cantor and others have drawn in the sand and, even more to the point, whether they are in effect willing to make the greatest possible contribution to the Re-elect Barack Obama campaign.

So, if my analysis is correct, this is game, set, and match to Obama, unless, of course, the House Republicans do decide that to play the role of Samson and take the entire economy down, either because they really are principled--which is hard to believe re Cantor, who has voted for 11 debt increases--or believe, I think wrongly, that Obama will be more blamed than they for the collapse and the horrendous unemployment it will create. The grand bargain, of couse, also means shelving the idiotic Balanced Budget Amendment being advocated by House Republicans. The best explanation of its idiocy, incidentally, is a posting by the Washington Post's moderate (if not conservative) economics columnist Robert Samuelson.

Why Bill Clinton would invoke Section 4 of the Fourteenth Amendment (and Obama won't)


In an interview, former President Bill Clinton stated that he would invoke section 4 of the Fourteenth Amendment in the debt ceiling crisis. Clinton stated that

he would invoke the so-called constitutional option to raise the nation’s debt ceiling “without hesitation, and force the courts to stop me” in order to prevent a default, should Congress and the President fail to achieve agreement before the August 2 deadline.

Sharply criticizing Congressional Republicans in an exclusive Monday evening interview with The National Memo, Clinton said, “I think the Constitution is clear and I think this idea that the Congress gets to vote twice on whether to pay for [expenditures] it has appropriated is crazy.”

Lifting the debt ceiling “is necessary to pay for appropriations already made,” he added, “so you can’t say, ‘Well, we won the last election and we didn’t vote for some of that stuff, so we’re going to throw the whole country’s credit into arrears.”

What's going on here? Why is Clinton's interpretation so different from Obama's?
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Monday, July 18, 2011

Obama's Top Secret Plan to Solve the Debt Crisis


Secretary Tim Geithner had a troubled look as he was ushered into the Oval Office. Senate Majority Leader Harry Reid and Vice-President Joe Biden were already there.

"Tim, did you put our top secret plan to solve the debt crisis into place?" President Obama asked.

"Yes, Mr. President, but we've hit a bit of a snag."

"What top secret plan?" Reid interjected. "Why wasn't I informed about it?"

"Well, if you knew, it wouldn't be top secret, now would it?" Biden chortled.

Reid shot him a dirty look.

"Don't worry, Harry," Obama said calmly. "Tim, explain our fail safe to the Senator."
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No More Secret Dossiers: We Need Full FTC or CFPB Investigation of "Fourth Bureau" Reputation Intermediaries

Frank Pasquale

There is a superb article by Ylan Q. Mui on the growth of new firms that create consumer reputations. They operate outside the traditional regulation of the three major credit bureaus. Mui calls this shadowy world of reputational intermediaries the "fourth bureau." The Federal Trade Commission (or the Consumer Financial Protection Bureau) should conduct an immediate investigation of the "black box" practices described by an industry leader in the article. This should be part of a larger political and social movement to stop the collection of "secret dossiers" about individuals by corporate entities. The Murdoch scandal now unraveling in Britain is only the most extreme example of a wholesale assault on privacy led by unscrupulous data collectors.

Once a critical mass of data about a person has been collected for a commercial purpose, she deserves to know what the data is and who is gathering it. Once an educator, employer, landlord, banker, or insurer makes a decision based on that data, the affected individual should be able to challenge and correct it. I have made a preliminary case for such reforms in my chapter Reputation Regulation, in this book. I now think this agenda is more urgent than ever, given the creeping spread of unaccountable data mining in the internet sector to a wild west of reputational intermediaries.
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Saturday, July 16, 2011

The Constitutionality of the Debt Ceiling and the President's Duty to Prioritize Expenditures

Guest Blogger

Larry Tribe

I.The Constitutionality of the Debt Ceiling

Professor Buchanan argues in a recent post that the Constitution “[f]ortunately . . . does require that the debt-limit law be declared invalid,” writing:
Everyone agrees that, without the debt-limit law, current law would allow the government to borrow the money necessary to cover its obligations. If that were not so, then we would not be in danger of exceeding the debt limit. That is, if the spending laws had not been written to include the authority to increase borrowing, then those laws would currently not be enforceable even in the absence of an overall debt limit. The very premise of the debt-limit standoff, therefore, is that the otherwise-valid spending laws would lead to an increase in debt above $14.3 trillion. The debt-limit statute purports to prevent the government from paying those other obligations, which violates Section 4.

In an op-ed published in the New York Times, I argued that the debt limit law is perfectly constitutional. Professor Buchanan’s comment does not prompt me to change that conclusion but does encourage me to elaborate on it:
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Friday, July 15, 2011

The Begolly Indictment and the First Amendment

Marty Lederman

Is there a constitutional right to make posts to the Internet encouraging terrorism? To link to a bombmaking manual in hopes that some reader will use it for unlawful purposes?

The Department of Justice yesterday announced an indictment raising both of these important Free Speech Clause questions.

A grand jury in the Eastern District of Virginia has indicted 22-year-old Emerson Winfield Begolly, of New Bethlehem, Pa. -- a former Penn State student and son of a Penn State instructor -- for "soliciting" acts of terrorism on the Internet and for linking to bombmaking instructions online. U.S. Attorney Neil MacBride explains that Begolly is alleged of "repeatedly using the Internet to promote violent jihad against Americans."

The indictment alleges two offenses: Count One alleges that Begolly repeatedly made posts to the Ansar al-Mujahidden Forum, an "Islamic extremist web forum used by its members to translate, promote and distribute jihadist propaganda," in which he "suggested" the use of explosives against targets such as police stations, post offices, synagogues, military facilities, train lines, bridges, cell phone towers and water plants, and implored his readers that "Allah commands us to terrorize the [average American]." (There are further examples to like effect in the indictment.) These posts are alleged to have been unlawful "solicitations" of arson, terrorism and other offenses, in violation of 18 U.S.C. 373(a).

Count Two alleges that Begolly posted a link to a document entitled "The Explosives Course," allegedly written by one of al Qaeda's former top chemical and biological weapons experts. "The Explosives Course" contains information on, inter alia, how to manufacture explosives. The indictment alleges that in providing the link to the Course, Begolly thereby "distributed" information on the use of explosives "with the intent that the information be used for, and in furtherance of," federal crimes of violence, in violation of 18 U.S.C. 842(p)(2)(A), which makes it unlawful to, inter alia, "distribute by any means information pertaining to, in whole or in part, the manufacture or use of an explosive, destructive device, or weapon of mass destruction, with the intent that the teaching, demonstration, or information be used for, or in furtherance of, an activity that constitutes a Federal crime of violence."

Each count raises important, unresolved First Amendment questions.
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Wednesday, July 13, 2011

So are we moving toward a "constitutional crisis"?

Sandy Levinson

The New York Times is reporting that "tensions [are] escalat[ing]" in the negotiations to achieve a resolution to the debt limit debate. "Across Washington, officials were weighed down with a sense that they were hurtling toward a crisis." Nate Silver actually uses the magic words in his column that well spells out how much to the right the House Republicans majority is even as compared with ordinary Republicans in the polity, who are willing to accept modest tax increases, let alone non-Republicans, with regard to their fanaticism about "no tax increases" now or ever. Thus he writes that "a failure to raise the debt ceiling at all [would likely] result[]in some combination of a debt default, a government shutdown, and a Constitutional crisis."

So the "Constitutional crisis" would presumably be the achievement of ultimate dysfunctionality, i.e., the inability of the two Houses of Congress to agree on legislation that would allow the United States to get out of this mess. And the dysfunctionality would obviously be caused, at least in part, by our Constitution and its utter lack of recognition of the role that political parties would play in our political system (as Joey Fishkin noted). If this is in fact the case, then why doesn't Section 4 spring back into life as a genuinely attractive option? The President can go on television on July 30 (or whatever the practicaly last possible moment is) and say that he has been advised by (some of) his lawyers that the Constitution is indeed not a suicide pact and that Section 4 does in fact authorize him to take whatever steps are necessary to leave the national debt "unquestioned."

Why, for example, is that argument weaker than Lincoln's argument in the Emancipation Proclamation, which was one of the world's monumental takings of private property in the name of the war power? FDR, in his 1933 Inaugural address, said that we should treat the Great Depression as the equivalent of war and behave accordingly (even as he rejected calls, by Walter Lippmann among others) formally to claim dictatorial powers. Are Eric Cantor and his minions not engaged in a fundamental war against the American economy, and is it really the case, to return to a previous post, that the only response by the President is to accept Prof. Tribe's altogether cogent arguments and accept our being driven over the cliff? (Or, to stick with the war metaphor, he could engage in basically unconditional surrender to Cantor and say that the Democratic Party will simply withdraw from the scene.)

In our Penn essay, Jack and I suggested that the key evidence for a "constitutional crisis," rather than Tushnetian "constitutional hardball" or a Posner-Vermeule episode of "constitutional hardball" is the movement of a significant number of Americans to the streets threatening a measure of social disorder. That isn't happening yet, but I do wonder what will happen, for example, when social security checks stop being delivered or veterans' programs for our "heroes" are shut down because we can't afford to pay for the treatment they need (and most certainly deserve). There was an interesting piece on NPR this afternoon about a town in Rhode Island that is running out of money to pay its pension obligations. A 90-year-old former public servant pointed out that he relies on his $2000/month pension--he gets no social security, I believe, because the local government, like many governments, chose not to participate in the Social Security system--to pay his $1000/month rent plus food, etc. I presume that Eric Cantor believes that the street is good enough as a place to live, asking people passing by for "alms for the poor."

Perhaps the McConnell option, as cowardly and craven as it is, will be adopted as John Boehner, who appears to be relatively sane, persuades enough of his caucus to vote for it and we'll be "saved." But what if not....?

Latest wisdom of crowds

Sandy Levinson

The Intrade participants now predict only a 40% likelihood of Congress passing a debt limit bill by July 31, though the percentage goes up to a whopping 65% re a bill before August 31. That should reassure all of us.

The House of Representatives is in the hands of a combination of political lunatics and nihilists, I think an unprecedented combination. It is a source of true regret that I actually must credit the United States Senate--and even the egregious Mitch McConnell, who can at least figure out that a US default would not be good for the Republican Party (let alone the country)--with greater sanity than the "people's House" and its majority "leader" Eric Cantor.

I'm not going to open this to comment because I see no need to generate yet another series of unproductive exchanges about the glories and evils of Tea Party economics. There will undoubtedly be other opportunities for a return to such fulminations.

Why Has the French Parliament, but not the American Congress, Voted on the Libyan Intervention?

Bruce Ackerman

As Americans increasingly allow their president to break free of constitutional checks, the French are moving in precisely the opposite direction. The Constitution of 1958 created a presidency that gave DeGaulle truly extraordinary powers. Article 16 gave the president unchecked authority to declare an emergency and assert unlimited power for as long as he thought appropriate. And Article 35 authorized him to commit military forces abroad, without ever gaining parliamentary approval.

But a generation onward, the French have engaged in a sweeping reappraisal of their Gaullist inheritance, leading to fundamental constitutional revisions. In 2010, Article 16 was dramatically revised to impose strict time limits on the president’s emergency powers. After 60 days, it is now up to the Constitutional Council to determine whether the emergency conditions invoked by the president still apply; and if they do remain applicable, the Council is authorized to reconsider the matter later.

Similarly, Article 35 was amended in 2008 to require parliamentary approval of military “interventions” within four months of their initiation. Since the constitutional time-clock was running out on the Libyan operation, the government submitted its military operation for legislative approval – and both chambers voted their approval yesterday. Nobody suggested that France’s involvement did not amount to an “intervention” since it was only supplying a minority share of the entire NATO force.

The contrast with our own case is sobering – especially since the draftsmen of the French constitutional revisions looked to American sources in their own work. France’s new approach to military interventions bears an obvious resemblance to our War Powers Act. And my own proposal for a time-limited “emergency constitution” served as one of the models in the French revision of Article 16.

I offer up the French example as an antidote to the pessimists among us who discount the possibility of constructive reform through framework legislation – most notably, Eric Posner and Adrian Vermeule, whose recent book, The Executive Unbound, dismisses the effective limitation of executive power as politically impossible. Why then have the French managed it, especially when the Gaullist legacy bulks so large in their constitutional tradition?

Tuesday, July 12, 2011

McConnell and the Separation of Parties, Not Powers

Joseph Fishkin

Following up on Sandy’s post, McConnell’s trial balloon today was, I believe, several degrees more cynical than Sandy suggests. Far from handing the President the power to actually cut spending unilaterally, McConnell’s proposal amounts to a delegation to the President of the power to raise the debt ceiling without cutting spending at all. (The President must propose, and be on the hook politically for, some large cuts, but Congress need not enact them.)

The McConnell proposal would trade policy leverage for political leverage. Instead of a big policy victory—the massive cuts to domestic programs including Medicare that the Republicans were very likely to win as the price of increasing the debt ceiling—McConnell aims for a different kind of victory: forcing President Obama to “own” the increase in the debt limit, not one time but three times, between now and November 2012. This victory provides a new and cynical twist on the logic of what Daryl Levinson and Rick Pildes call “the separation of parties, not powers.”

Read more »

Delegation run riot

Sandy Levinson

Apparently, Mitch McConnell's secret plan to avoid a default is to delegate to the President the unrestricted power to cut whatever governmental programs he wishes, with no consultation with Congress, so long as his cuts reach the magic number of $2.4 trillion. If he does that, then he can also unilaterally raise the debt limit. This gives new meaning to the notion of "delegation run riot."

How could any "conservative" support this enhancement of "constitutional dictatorship" and unilateral powers over important governmental programs? But, of course, that's a rhetorical question, because in no serious sense is McConnell or the modern Repubulican Party "conservative." He and his collegues are truly right-wing radicals and should be described as such.

Intrade's latest

Sandy Levinson

I note for the record that Intrade's latest prediction re Congress's passing a debt limit increase by midnight on August 31 is only 75% likelihood. This is down a full six points from yesterday's 81%. It is also interesting that the date is August 31, which presumably takes into account the possibility of a default in early August that would so roil that markets that even Republicans would come to their senses. Still, it seems fair to say that the actual markets are still refusing to take the possibility of default very seriously, though that seems less true in Europe re the possiblity of Greek and now Italian default. (Perhaps one difference is that European default is a reflection of truly deep and fundamental economic problems, whereas the American controversy is about the capture of the Republican Party by anti-tax fanatics.)

I made a bet back in April in which a friend of mine offered me 100-1 odds (i.e., his $100 against my dollar) against a default. So the obvious question is what any readers would be willing to offer me for an assignment of my bet. Since it might violate federal law actually to use the Internet for such purposes, I'll take your offers only as a theoretical exercise and not an "actual offer" that would enable me to respond with an "actual acceptance" and exchange of funds. We certainly wouldn't want to turn Balkinization into a betting operation :)

How Law Schools are Helping the Elite

Brian Tamanaha

In 2010, tuition at Yale was $48,340, plus $18,900 in estimated living expenses. About 45 percent of the incoming students paid full price. In rounded terms, nearly 25 percent received a remission of half or more of tuition, 29 percent received less than half, and no student received a full tuition scholarship. At Harvard a bit more than half of the entering JD students paid full price; tuition was $45,026, with estimated living expenses of $22,874. At Stanford half of the students paid full price; tuition was $44,121, plus $23,739 in living expenses. Harvard and Stanford handed out a number of full scholarships, but otherwise their scholarship numbers were in the same range as Yale’s. The top schools, with some variation, distribute scholarships roughly along these lines: 50 percent of the students pay full fare, 25 percent get a discount of half or more, 25 percent get less than half off, and a handful of students enjoy full scholarships.

The key dynamic involves the students who are made to pay full fare. Typically, they will be in the bottom half of the LSAT/GPA profile of students admitted to the JD class at any particular school. The highest ranked schools have students with the highest LSAT/GPA combination—with LSAT numbers steadily falling as you travel down the ranking. For example, an applicant with a 171 LSAT would have placed in the bottom 25 percent of the class at Yale, but in the top 25 percent at Michigan, Penn, Berkeley, Virginia, Duke, and so on.

An applicant in this position would be confronted with a tough choice: go to Yale and pay full price ($50,750 this year), or attend a lower down school, say Duke ($44,722), with a tuition discount of half or more; Yale at $150,000 tuition over three years or Duke at $70,000. When you add in projected expenses, the final price would be $207,000 for a degree at Yale versus $118,000 for a degree at Duke. (The numbers work out similarly for a choice between Harvard and Duke.)

Applicants from wealthy families who can help financially wouldn’t hesitate to go to Yale. But applicants from middle class families—school teachers, middle management, small business owners, solo practitioner lawyers (parents who exhausted their resources helping their child make it through college without debt)—will find the Duke offer hard to turn down. Evidence of this wealth effect can perhaps be seen in the fact that, although its tuition is among the highest in the country (and the school rarely awards full scholarships), only 73 percent of Yale 2011 graduates had law school debt—among the lowest in the country. (At most schools 80 to 95 of graduates have law school debt.) Read more »

Monday, July 11, 2011

The Meanings of "Lawfare"

Mary L. Dudziak

One characteristic of post-9/11 American legal thought has been the prominence of the idea of “lawfare.”  A new blog is called simply Lawfare, and at the National Security Law Institute I attended this summer, one of our sessions was on Lawfare.  Lawfare is thought to be of increasing importance, but it seems increasingly clear that the term itself means different things in different circles, and apparently sometimes different things in the same circle.  What follows are various takes on lawfare from legal scholars, and then a military perspective.  In the end, I think we’re left with muddiness on the issue of whether there is a normative component to lawfare, and if so whether that normative component is inherently negative.

The slipperiness of the term seems apparent in Benjamin Kleinerman’s smart review on Lawfare this weekend of Eric A. Posner and Adrian Vermeule’s new book The Executive Unbound: After the Madisonian Republic (which takes the authors to task for rejecting a Madisonian vision of government without paying sufficient attention to Madison’s own thoughts on the topic).  To set the review in the context of the Lawfare blog, Kleinerman begins by invoking what he suggests is one of lawfare’s meanings.  He notes in part that the concept of lawfare refers to the idea that “law has become a potent weapon in the modern national security state-so much so that paying attention to the law has become an essential component of national security itself.”  This idea is prevalent in discussions of lawfare.  But Kleinerman precedes this with the idea that “the term ‘lawfare’ refers to the ways in which the national security establishment needs to worry about the aggressive, ‘war-like,’ use of the law to punish it for past actions.”

For Kleinerman, it was in part the likelihood of legal second-guessing that “led the Bush administration to seek a legal doctrine of executive power that would permit the wide-ranging discretion it thought necessary to conduct the ‘war on terror.’  The Bush administration sought to legalize what I have argued elsewhere is rightly thought of as extra-legal discretion because the world of ‘lawfare’ required a legal response to the inevitable legal challenge.”

In this treatment, law is a negative presence because the threat of legal sanctions calls for a legal response, and this constrains effective government action.
Read more »

Sunday, July 10, 2011

An anecdote from almost 50 years ago

Sandy Levinson

In 1962 I entered the Harvard Government Department as a graduate student, intending to become a "defense intellectual," as the term was then used. (I had written a senior thesis at Duke about deterrence theory, including the logic of "the rationality of appearing irrational." Richard Nixon, incidentally, made use of this logic, by his own account, when he became President later in the decade.) Among other things, as a firsit-year graduate student, I took a "seminar" (with 90 students!) with Henry Kissinger. By the end of the year, for a variety of reasons, I had migrated to Robert McCloskey, a truly wonderful human being, and a future career studying constitutional law. But that's not the anecdote.

In October 1962 there occurred the Cuban Missile "Crisis." I put the word in scare quotes because I was remarkably detached during those legendary 13 Days. The reason is simple: As a would-be "defense intellectual," up on my game theory, I "knew" that it was utterly irrational for the Soviet Union and the United States to engage in armed conflict that could easily lead to nuclear exchanges and World War III. Therefore it wouldn't (and, of course, didn't) happen. So I also knew that the negotiations with the Soviet Union were a form of kabuki theater without "real meaning," since there was only one possible ending. My complacence was vindicated, and I could feel more than a bit superior to those who weren't "defense intellectuals" and were actually worried that something ominous would happen.

A lot of things occurred during the 1960s, and one of them was a loss of faith in models of rational behavior that accounted for my complacence. Instead, I read Ted Sorenson's account, which indicated that JFK said there was a 1/3 chance of war breaking out. I also read more about the "wise men" advising Kennedy, including Dean Acheson, most of whom were lunatics who wanted the US to attack Cuba. There was also the little detail of an upcoming election, which made it impossible for JFK to accept the altogether rational assessment of his Secretary of Defense Robert McNamara that the missiles in fact posed no threat to the US, because, under the altogether rational theory of deterrence, the missiles were unusable, unless the Soviets wanted to invite the obliteration of their society. (We now know, incidentally, that the Soviets unaccountably probably didn't have sufficient full-scale command and control over the missiles to assure their non-use.)

In any event, as we all know, it was ultimately Nikita Khrushchev, in his own way one of the great men of the 20th century, who "blinked" (and, of course, lost his job the next year, though, in a sign of changing times in the USSR, he lived out his life and died peacefully in old age). And, of course, one of the reasons he blinked, in addition to realizing that the United States might in fact go to war, is that Kennedy, though lying through his teeth to the American public about this, in fact basically promised to get rid of our Jupiter missiles in Turkey that to which the USSU could legitimately take umbrage. (Details of this lying are set out in a fine book on presidential lying by Eric Alterman.)

In any event, retroactively, I lost my complacence about the 13 Days. Ostensibly "wise men" threatened the lives of each and every one of us, and we escaped conflagration not only because JFK was willing to reject lunatics like Acheson (and others, including many Republican politicos screaming about the Communist threat 90 miles from our shores), but also because his adversary Khrushchev was willing to run the risk of sacrificing his own political future (as in fact happened). If I had known in 1962 what I learned afterward, and if I had been less of a complacent "defense intellectual," with my faith in the competence of our highest leaders, I, like those I considered bumpkins, would also have been scared to death.

It's also the case, incidentally, that the Cuban Missile Crisis exemplifies "constitutional dictatorship," for Kennedy, to the applause of his minions, made the decisions of life and death ultimately by himself, without the slightest formal consultation with Congress or authorization (which, of course, he would have received, and I suspect that Congress had passed a Cold War equivalent of the AUMF that Kennedy's lawyers could use as legal authority). It was an illustration of "imperial presidency" at its maximum. Again, at the time, I doubt that I thought twice about this aspect of the affair.

I will let all of you make any applications you wish to the present Debt Limit "Crisis."

Laurence Tribe Responds to Secretary Geithner

Guest Blogger

Larry Tribe

[Professor Tribe has asked me to reprint two letters on the debt ceiling issue, one addressed to me and one sent to Secretary Geithner.-- JB]

Hi Jack,

I just read the following post on your blog regarding the presumably sincere but (to my mind) unconvincing attempt by Treasury’s GC to walk his boss back from the constitutional (if not the fiscal) brink. I’m of course delighted that Secretary Geithner is (and claims always to have been) in agreement with you and with me that the Constitution squarely places borrowing authority with Congress, not with the President, so that Sec.4 of the Fourteenth Amendment gives the President no constitutional “silver bullet” here – although, as you rightly stress, the Constitution does give us all a strong basis to insist, as you put it, that “Congress is not living up to its constitutional obligations” when it plays Russian roulette with the public debt.

That said, there remains the question whether the Secretary was at least suggesting until very recently, as I said he was in my op-ed, that the President might have a constitutional option that he might be legally free to exercise unilaterally. From my perspective, the importance of showing that this option was illusory was heightened by the fact that it wasn’t just a pundit or a professor here and there who was dropping that hint but the Secretary of the U.S. Treasury who appeared to be doing so.

In that regard, I’m attaching the letter I sent on Friday afternoon to Secretary Geithner’s chief of staff, Mark Patterson, to set the record straight after Mr. Patterson phoned to chastise me for attributing to his boss a view at which the chief of staff insisted the Secretary had never hinted.
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Guns, Butter, or Gambling

Frank Pasquale

Sandy Levinson has posted interesting reflections on our tendency to "absolutize" the public debt. There is at least one good and one bad rationale for us to do so. The good rationale is straightforward: government is the ultimate risk manager. We rely on it to aid recovery after disasters, to defend US interests, and to provide for those who cannot survive using their own funds. In a world of advanced and expensive medical technology, that last category potentially includes nearly everyone, at some point in their lives. The debt ceiling debate is a wake-up call for us to choose more carefully between guns and butter. We need credit so that the government can borrow to, say, rebuild a city after a massive earthquake.

But there is also a bad reason for the rising stakes of US spending. To put it bluntly, the too-big-to-fail banks are the new Fannie Mae and Freddie Mac. The government must "keep its powder dry" in constant vigilance, ready to "re-TARP" the damage should any panic befall them. Consider, for instance, the current agonies of the Eurozone, as described by John Lanchester:

[Greek protesters] want the Greek government to default, and the banks to accept losses for loans they shouldn’t have made in the first place. It is that prospect which spooks everyone else in the EU, and the world economic order generally. . . . Who owns that Greek debt? [M]ainly French and German banks. Yes, but banks insure their debt via the use of complex financial instruments. Insure it with whom? Don’t know: some of it is insured with British banks as counter-parties to the risk, but that risk will be insured in its turn, so that the identity of the person holding the parcel when its last layer of wrapping comes off is a mystery. That mysteriousness was the thing that made Lehman’s collapse turn instantly into a systemic crisis.

Read more »

Saturday, July 09, 2011

Let's not absolutize the public debt

Sandy Levinson

Many of the arguments, including perhaps my own, seem to be suggesting that there's something almost sacred about the public debt. But can that be the case? We allow repudiation of private debts all the time; that's what bankruptcy is about. And, for better or worse, Blaisdell (1934) significantly weakened the forced of the Contract Clause, which was supposed to give creditors a big axe to wield against states passing debtor relief laws that took the form of impairing "the obligations of contract." So maybe there's a difference between private and public debt. Surely there is, but one message of Perry is that the United States could in fact renege on its obligations to pay gold by virtue of basically presidential fiat based on the altogether accurate belief that sticking to the promise set out on the face of the currency itself was in fact not enforceable. (A majority did seem to suggest that repudiation was unconstitutional, but, as with Marbury, the majority also came to the conclusion that they didn't have the power to do anything about it. And it is well known that FDR was prepared simply to ignore the Court on the grounds basically of emergency power. I don't know if the Court was actually aware of that, but they may well have surmised it.) And there are many conservatives these days who are in effect calling for states to repudiate their solemn debts regarding public pensions, by declaring bankruptcy. (Conservatives are discovering the merits of Blaisdell after attacking that decision for some 75 years.)

So it does seem basically a political/economic decision as to when one honors debts and when, on the other hand, one simply says, "I'm not goin to pay. Sue me (if you can get standing and if the state itself hasn't provided a perfectly legal means of debt repudiation"). Imagine if the current debate were about the wisdom of the US honoring all of its public debt, with good faith arguments being made on both sides about the costs and benefits of repudiation. Would we (i.e., political liberals) necessaarily be arguing that the Constitution simply disallows that, even if it might appear, on balance, to be the wise thing to do? Wouldn't such an argument require repudiation of Blaisdell and adoption of Sutherland's extremely powerful dissent, based on text and history (whereas Hughes's majority opinion was based far more on doctrine and prudence)?

Isn't the key to understanding the current argument the fact that no one (at least in "mainstream politics" or economcs) is arguing that refusing to honor the US debt would be desirable? Indeed, what makes the negotiations so dramatic is that everyone professes to believe that it is essential not to default. That being said, there is obviously a difference of opinion about the consequences of default. I must say that I find striking the lack of any market response, at least so far, to the prospect of default. Maybe everyone believes this is indeed pure political theater, and that a rabbit will be pulled out of the hat at the last minute, so that only chumps (like yours truly, perhaps) take seriously the possibility that our government is so dysfunctional that a default will in fact occur. Or, perhaps, sophisticates believes that the consequences of default are overrated. We will still be the 800-pound gorilla (maybe now only the 775-pound gorilla) and our debt will still be safer, all things considered, than any other country or area (including, say, Europe).

But if one does believe, as Timothy Geithner appears to, that a default would be "catastrophic," then one shouldn't be so blase. Imagine an asteroid coming toward the earth, which will hit us in a month unless we buildl and use a gizmotron, which would cost a trillion dollars of unappropriated funds. (And Republicans would argue that we can't raise taxes in order to build the gizmotron.) Would we simply accept this and get ready for the big hit, or would we demand that the President "act"--or that the military take over and do whatever is necessary? In any event, don't our arguments (including my own) about the Constitution depend, ultimately, on empirical judgments about the consequences of default, unless one absolutizes one particular form of property, i.e., public debt?

Musings on a Saturday afternoon....

[UPDATE: It's now Saturday night, the "grand deal" has utterly collapsed, not least because the Republican presidential candidates seem to be condemning any deal at all that would raise the debt ceiling unless it's accompanied, at the very least, by a balanced budget amendment. Intrade currently says its 80% likely that the US won't default. So query: what will the Intrade odds be on Monday, and what will the stock market do? Is this moving from political kabuki to a genuine probability of the US defaulting because of our utterly dysfunctional political system, caused by all sorts of things, including, of course, the Constitution itself?]

[FURTHER UPDATE: The current Intrade site indicates that the market now assigns only a 19% probability to a default, and the price of a "no default share" has gone up by ten cents. I am curious why this is the case, given Obama's statement that he will veto any short term authorization of a higher debt and the continued proclamations by congressional Republicans that any increase of taxes is unthinkable. Mitch McConnell has assured us that he has a secret plan that will make sure there is no default, but, as with Nixon's 1968 secret plan, I have no idea what what it could possibly be, given McConnell's insistence on new taxes and Obama's promise to veto any short-run extension. But it is clear that the Intrade market, at least, views what is going on in DC as mere Kabuki (or perhaps the better analogy is to Javanese puppets), full of sound and fury but signifying nothing about the genuine potential for default. I hope the investors are correct.]

Friday, July 08, 2011

Is Section 4 Alive?

Jason Mazzone

My colleagues-in-blogging have taught me a good deal about section 4 of the 14th Amendment and they have given me a lot to think about during the debt ceiling debates. But a question continues to nag me: What is the reason for thinking that section 4 applies beyond the context of Union debts incurred during the Civil War? Put differently, is Section 4 even alive today?
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