Sunday, July 31, 2011
Stanley Greenberg is the latest dot non-connector
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.
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.
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.
Lessons From the States on the Debt Ceiling Crisis
Economic Class and Federal Judgeships
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.
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.
Some questions for Americans Elect
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:
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 CNN.com, Here's the part about the most likely scenario if no deal is reached, and the role that section 4 would play:
Tuesday, July 26, 2011
An interesting disconnect
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.)
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.
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.
Monday, July 25, 2011
Tom Friedman and David Patraeus
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).
Toward a parliamentary system?
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)
Saturday, July 23, 2011
Imaginative Constitutional Histories, Executive Unilateralism, and the Debt Ceiling
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.
Friday, July 22, 2011
Science Communication vs. Soulcraft
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."
On "winning arguments" in constitutional law
This just in, re President Obama's "town meeting" at the University of Maryland today:
Looking more like Weimar (in the '20s) every day
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."
Thursday, July 21, 2011
Professor Connell's Accusers
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.
Wednesday, July 20, 2011
A fight to the finish
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.
Tuesday, July 19, 2011
Further illustrations of why formal rules matter
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%).
How the Constitution structures the debt crisis
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).
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
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.
No More Secret Dossiers: We Need Full FTC or CFPB Investigation of "Fourth Bureau" Reputation Intermediaries
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.
Saturday, July 16, 2011
The Constitutionality of the Debt Ceiling and the President's Duty to Prioritize Expenditures
Friday, July 15, 2011
The Begolly Indictment and the First Amendment
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?
Wednesday, July 13, 2011
So are we moving toward a "constitutional crisis"?
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] resultin some combination of a debt default, a government shutdown, and a Constitutional crisis."
Latest wisdom of crowds
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.
Why Has the French Parliament, but not the American Congress, Voted on the Libyan Intervention?
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.
Tuesday, July 12, 2011
McConnell and the Separation of Parties, Not Powers
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.)
Delegation run riot
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."
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.)
How Law Schools are Helping the Elite
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.
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.
Sunday, July 10, 2011
An anecdote from almost 50 years ago
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.
Laurence Tribe Responds to Secretary Geithner
Guns, Butter, or Gambling
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.
Saturday, July 09, 2011
Let's not absolutize the public debt
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.)
Friday, July 08, 2011
Is Section 4 Alive?
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?