Thursday, March 22, 2012

Justice Fortas on Executive Power

Gerard N. Magliocca

I'm pleased to announce, at least tentatively, that I have come into possession of a previously unknown document written by Abe Fortas. This paper, entitled "The Constitution and the Presidency," was drafted in late 1973 or early 1974, a few years after Justice Fortas resigned from the Supreme Court. It is a response to Watergate, and gives Fortas's analysis of the constitutional abuses of the Nixon Administration and his proposed remedies. I'll do more than one post on this, but for now I want to discuss (in the spirit of Sandy Levinson) how Justice Fortas thought that the Constitution should be amended to limit the power of the Presidency.

"The controls that the Founding Fathers adopted," Justice Fortas began, "are no longer adequate. The balance that the Founding Fathers ingeniously devised no longer exists. It has been destroyed by the complexities of modern life; the vast expansion of governmental function; the decline of Congress due to the growth in the number of its members and, principally, to its failure effectively to reorganize its management and procedures; and the enormous increase in Presidential power and prestige." What should be done about this?

1. Fortas supported a constitutional amendment providing that a two-thirds vote of the House and Senate would trigger a special election for President and Vice-President. The election would be federally financed and held 90 days after this no-confidence vote. The incumbent Administration could, though, run in this campaign and be reelected.

2. The Twenty-Second Amendment should be repealed.

3. The Twenty-Fifth Amendment should be changed to say that a vacancy in the Vice-Presidency would trigger a special election to fill that position, instead of having the person nominated by the President and confirmed by Congress.

4. In the event of a presidential death or resignation, the Vice-President should hold office for only 90 days until a special election is held to choose a new President. Moreover, the Vice-President's role in breaking ties in the Senate should be abolished and the VP should be able to run one of the Cabinet Departments.

There's a lot to chew over here. I'll do some further posts about this unpublished paper, and in due course will make it available to all interested scholars.


Prof. Levinson raised a form of #1 during the Bush Administration.

I question -- especially if Congress is "in decline -- if 2/3 of both houses would actually have the wherewithal to hold such a "no confidence" vote.

I'd be curious to see how repealing the 22A helps, seeing that seems counterintutitive.

The VP vacancy thing seems trivial.

#4 is interesting but it is likely to happen so rarely that it is of limited value, so it is largely of academic interest. The last part can be done now, right?

Implicit in what Joe said is just how, well, inadequate these changes would be. If Fortas truly believed that the Constitution was outdated, his solutions are remarkably weak medicine.

As the Ginsu knife commercial says, "Wait, there's more."

The two fundamental changes in US governance increasing the president's power were the creation of the administrative state delegating legislative and judicial power to the executive and the development of a large standing military enabling a president to go to war without Congress.

I do not see how Fortas' suggested constitutional changes address these issues/problems.

Fortas could have helped by not remaining an adviser of the President while he was a Supreme Court justice, though by doing so, he followed in the footsteps of justices in the 1790s.

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