Thursday, August 02, 2012

Caretaker Governments and Inauguration Day

Gerard N. Magliocca

OK, let's try a more serious post.  Many people (especially Sandy) criticize the length of the transition period following a presidential (and corresponding congressional) election.  Why wait for two months for new leadership? Significant problems could arise during that time that would have to be addressed by officials who lack democratic legitimacy.  Parliamentary systems, the argument continues, do not work this way.  The opposition party takes over immediately (unless it takes a long time to assemble a coalition government).

I'm not sure, though, that the criticism of Inauguration Day is warranted.  Lame-duck sessions are often quite productive. Why? Precisely because they offer breathing space for the parties to cooperate without the pressure of electoral politics.  Parliamentary systems have the option of a caretaker or "technocratic" government (such as the one in Italy now) that are formed without an election for a limited time or for a limited purpose.  The only way to accomplish that in the United States is in a lame-duck session.  And that is not a bad thing every once in a while.  A deal on the debt ceiling increase, for example, would have been much easier at the end of 2010 than it was in the summer of 2011.

There are are limits to this idea, of course.  Lame-duck sessions went until March before the ratification of the Twentieth Amendment, and that was probably too long.  Is two months too long though?  I'm not convinced.


Gerard offers an interesting hypothesis. I'm less optimistic, but I want to raise another point: What he is expressing is just another version of the loss of faith in democracy. The attraction of the lameduck session is that a lot of incumbents, some repudiateed in elections, others who have decided to retire, will, free of political pressures, decide to do the "right thing" in a way that electorally accountable (or recently chosen, like Ted Cruz in Texas) legislators will not. That may be correct, but if we think buy the underlying argument, why not think of other ways to limit anything that might be called democratic governance?

I came here to make the same point Prof. Levinson just made. So, ditto.

The example of the debt ceiling is particularly poor. First, there should not be a debt ceiling; no other nation has one and it's economically senseless. Second, there should never be a "deal" regarding it. That would allow one party to hold the faith and credit of the US hostage. Third, a "deal" would have been easier in late 2010 than in 2011 only because of the election results, not for any reason intrinsic to lame duck sessions. It was the change in people (and parties) which made the difference.

Given that the Obama administration bureaucracy is set to unleash a tidal wave of pending regulations immediately after the election no matter who is elected, I have a great deal of sympathy for Sandy's position of moving the fired regime out of office immediately.

There are some unaddressed structural issues with and immediate transition, though.

A newly elected Congress could probably take office in 2 weeks and get up and running.

The Executive is a different beast. The President must select hundreds of appointees to run the bureaucracy and there is very little time to do so when he or she assumes the duties of the office.

In a parliamentary system, the party out of power chooses a shadow government and can take over power in a very short period of time.

In our system, we elect individuals and not parties, so at most our parties have unofficial shadow governments of experienced technocrats who the elected President may or may not choose.

As we saw in 2000, counting votes and resolving legal questions in a close election takes a significant amount of time. Should these proceedings, if they occur, be rushed even more than they already must be?

If we didn't have the Electoral College (and we shouldn't), the odds of a close election nationwide would be pretty small. In addition, if all precincts used scanners, a recount would be pretty simple.

I want to challenge Sandy's notion of distrusting democracy. Suppose I say that, if you want to get legislation passed on [a controversial issue], then you should not press for action in an election year. Is that showing a lack of faith in democracy, or displaying a wise understanding that campaigning and governing don't always mix well?

If you don't mind my jumping in on a point where I agree with Prof. Levinson, I'd say your question answers itself.

One of the features of 19th C politics which I find fascinating is the extent to which parties deliberately took controversial positions precisely in order to fight the election on them. Jackson and the Bank is a good example, as is the 14th A in Congress. Sometimes those decisions didn't work out so well (think the Kansas-Nebraska Act), but they weren't afraid to try.

I think there needs to be some space between administrations, especially in the modern state given its size, and even w/o the Electoral College, there will be sometimes where there is a real close election and/or where challenges should be allowed to be on the safe side.

This might not require the two and half or so months we have now, but I don't think an immediate turnover is necessarily a good idea. As to the OP's argument, I think that's interesting.

Other systems are noted, btw, but we don't have a parliamentary system. We split things into executive and legislative, so that doesn't quite seem to work.

Of course, in the 19th century the new Congress didn't meet until more than a year after the election, so there was often no choice but to do things in election years.

Well, that seems counter to your suggestion that a lame duck Congress is a good venue for passing controversial laws. A longer lame duck period should have enhanced that, yet the opposite happened.

Joe expresses a legitimate concern, but I would make two points in response:

1. Whatever the advantages of a lame duck Congress, lame duck Presidents seem like a bad idea. Wars can start, all kinds of emergencies can happen (some of which we saw last time around). There's a real advantage to getting the new President in office, since he (or maybe she one of these days) has the support of the electorate.

2. Changing the inauguration date will force both parties to prepare in advance their major appointments. I like that -- it would be helpful when voting to know who they intend to appoint.

One can hypothesize all sorts of bad things that might happen during (and/or as a result of) a lame-duck session, but you could also hypothesize bad things that might happen during (and/or as a result of) a rushed transition to an unprepared administration or Congress (though the risks on both accounts are probably less with regard to latter). Given that our experience with lame-duck sessions since the enactment of the Twentieth Amendment hasn’t been all that bad, I find it hard to see the argument for change. Its not like we are in such good shape that we can move on to solving hypothetical problems.

The current obstacle to shadow governments, (Which I agree would be necessary to accomplish a quicker change of administrations.) is not that we don't have a parlimentary system. It's because of 18 U.S.C. § 599:

"Whoever, being a candidate, directly or indirectly promises or pledges the appointment, or the use of his influence or support for the appointment of any person to any public or private position or employment, for the purpose of procuring support in his candidacy shall be fined under this title or imprisoned not more than one year, or both; and if the violation was willful, shall be fined under this title or imprisoned not more than two years, or both."

You want shadow cabinets, amend this law to permit them.

This raises an issue that I've always had with PRof. LEvinson's complaints about the Constitution: he presents little evidence that any of the supposedly imbecilic attributes of the Constitution have actually resulted in negative consequences for the country. He dislikes the equal representation in the senate, but some of our best senators have historically come from small states (h.clay - ky), so this rule has accidentally empowered good leaders, and some of our most backwards states (including texas) have historically been the biggest so this provision has helpfully limited their negative influence. Likewise, he doesn't like that the const. promotes gridlock, but gridlock is just as likely to be good for the country (when republicans are in power) as bad (when democrats are).

In sum, what I think he underemphasizes in his complaints about the const. is just how unimportant a constitution is. There are bad countries with great constitutions (think Mexico - it's const. is frequently amended and includes provisions that make a liberal's heart flutter like requirement that 90% of all campaign funding be public) and good countries with bad constitutions (u.s.). As Scalia said to nytimes a awhile back: "Every banana republic in the world has a bill of rights," What makes a country successful or unsuccessful, then, is not its constitution, it's luck. The u.s. used to be great cuz we were lucky enough to get FDR; now we stink because we were unlucky enough to get Geroge W. for eight years - the constitution didn't change in the interim.

Or as I say frequently to Sandy: It's not the Constitution, which in important respects isn't even in force anymore. It's the political culture.

The best constitution in the world won't help you if your political culture won't follow it.

A couple of responses to mls and to Andrew.

mls implicitly assumes that solving the inauguration problem will prevent us from solving others that are more important. I don't see any reason to think that's true. It's often the case that some problems are intractable under current conditions, so we solve the ones we can. In particular, the inauguration date doesn't raise any partisan issues that I can see, so it's less likely to be deadlocked. Better to solve it now, when it's not an emergency.

In response to Andrew, I'm dubious about using the poor (or good) quality of particular Senators as an argument one way or the other. We've had over 20,000 Senate-years since 1789; it's only to be expected that some are good, some really bad, and most in the middle. That'll be true in any system.

I'm also not sure why Clay wouldn't have been a Senator if the Senate hadn't been gerrymandered. KY would still have elected him, I'm sure.

The cost of gerrymandering is hard to specify because it results in challenges not faced or inadequately responded to. The argument for Republican government is that the legislature will, over time, reflect the "permanent and aggregate interests" (Madison's phrase) of the electorate. Gerrymandering prevents that from happening, thereby undermining the entire premise. It's impossible to say, though, how it would play out in any particular case.

I do agree with you and Brett about the need for a good political culture. I suspect Brett and I would disagree on just what that meant.

Good political culture:

1. A dedication to the rule of law. No shortcuts on the theory that the end justifies the means. (This is a MAJOR failing of our current political culture. The rule of law is actively despised in some circles, though not openly.)

2. Acceptance that people are entitled to go to Hell in their own way, if they're so determined. "For your own good!" is not reason enough to violate people's autonomy.

3. No self-dealing, nepotism, insider trading. (Also a major failing, which is why Congressmen leave office so wealthy.)

4. Political service as a temporary thing, not a lifetime career.

Instead we have a self-perpetuating political class culturally distinct from the larger population, who game every rule that might stop them from doing whatever they want.

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Brett, I agree with all of those. I'd add some more:

1. The people are sovereign and must be fairly represented in Congress.

2. Voting is a right.

3. Majority rule is the default, even if there are exceptions in some cases.

Good political AND constitutional culture should also address Article Four's Guarantee Clause:

"The United States shall guarantee to every State in this Union a Republican Form of Government, [...]"

This ties-into Jack Balkin and Sandy Levinson's great article "The Dangerous Thirteenth Amendment" to which Jack provides a link in an earlier Blog post.

In response to Mark Field, I agree there are dangers of lame duck Presidents, but the issue seems to arise in any number of "lame duck" contexts (that is, for other roles where the person is a "lame duck") but given the need for transition time, it is something we live with.

It is a good idea to prepare ahead and candidates already do somewhat, but I don't think a full bench, shall we say, will be able to be realistically chosen ahead.

Brett's citation is based on "for the purpose of procuring support in his candidacy" -- a quid pro quo. An important qualifier. Also, though it might not advance the "voter knowing Cabinet" interest, having the appointments ready doesn't mean notifying them. OTOH, immediate transfer does not give Congress time to vet them. Another value of a delay.

Brett's four rules are useful as far as they go though the rub is how to apply them (e.g., campaign finance laws). As to paternalism, there are limits there. We are not able -- even if we want -- to buy every sort of impure food or drug.

As to temporary times in office, this is partially a matter of the people going to hell in their own way aka by re-electing people.

He notes "the Constitution, which in important respects isn't even in force anymore." When pressed elsewhere, he noted that "anymore" is fictional. That is, the 14A was not much "in force" years ago either.

The same with "current" political culture not following the law. Not merely some recent thing. It has in some fashion always been an issue, and before we just blame pols, it has in some fashion been an issue writ large. The fact so many sneer at something like following tax law shows the respect for law these days.

As to Mark Field's rules, okay, though there are various exceptions for rights and limits on power cited in the Constitution. The "default" is repeatedly limited.

I also would add that Brett's comments (like his debate with Mark Field recently on power generally) is too unbound by the people who actually select the "political class." The politicians are tied to those who select them, including the voters. Ultimately, we are the government, 'we the people' have the power, including a checked power to govern by majority will. Such is the nature as Shag suggests of republican government.

"When pressed elsewhere, he noted that "anymore" is fictional."

Well, of course it's going to be fictional, if you excise the "in many important respects" part.

Perhaps you simply disagree with me that quorum requirements, that both chambers have passed the same language, that laws regulating commerce be restricted to commerce, which is actually interstate, are important respects in which the Constitution is no longer in force?

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Well, of course it's going to be fictional, if you excise the "in many important respects" part.

We disagree on the issues, obviously (e.g., along with Mark Field and Dilan Esper, even using historical arguments, I don't think you are right on the Commerce Clause), but it is not that those issues aren't important subjects.

I covered this ground with you over at Concurring Opinions blog, someone here blogging there too. You agreed that the USSC in the past underenforced certain parts of the Constitution, e.g., the 14A.

My concern is your language about constituitonal limits "anymore" being followed implies there was some change from some nice time of nirvana when the Constitution was merely enforced.

I don't agree with your examples, but the best you have there are that different parts of not being enforced. "Anymore" is misleading in this fashion.

As noted with the Concurring Opinions citation, this isn't the first time I brought this up.

So, it comes down to your interpreting my remark as meaning to contrast current unenforcement of important parts of the Constitution with previous, (admittedly fictional!) 100% enforcement of every important aspects.

While I understood myself to be saying that specific important aspects of the Constitution which were formerly enforced are no longer enforced, without reference to other aspects which might now be enforced that weren't.

Because, you know, I think the ENTIRE thing ought to be enforced. All at the same time.

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I think the problem is the statement if very ambiguous & is thus misleading:

It's not the Constitution, which in important respects isn't even in force anymore.

The implication to me is that at some time "the Constitution" was "in force." "Anymore" suggests to me a time when the stuff that really matters was in force. But, as I noted repeatedly, in the past the Constitution was not "in force" in "important respects."

So, though I disagree with you on the specifics, if I did agree, I would see a more continuous trend, just different specific problems.

The Constitution covers a lot of ground, often conflicting in nature. In reality, it is very hard for it to be completely followed, especially given the flaws of society as a whole (not just "the political culture").

We continue to try to reach an ideal, in our imperfect human way.

Doing my Shag impression, I read an article linked by a recent entry by Jennifer Keighley on coerced physician speech.

An interesting read that suggests the recent slew of anti-abortion legislation has various concerns, not limited to unduly burdening the right to choose an abortion.

The Constitution is also not "in force" under such laws in other ways, including regarding the 1A.

I guess I'll have to do an impression of myself by referring to John D. Castiglione's "Another Heller Conundrum: Is It a Fourth Amendment 'Exigent Circumstance' to Keep a Legal Firearm in Your Home" that appears in the current UCLA Law Review Discourse, noted at Concurring Opinions, with a link. The paper is quite short and the title should attract attention. Might the Heller home self-defense/Second Amendment holding serve as a defense to a 4th Amendment "no-knock" entry in a situation where the homeowner believes that it is a home invasion? Assume a homeowner has registered a gun or guns with the authorities and the police are aware of this when they decide upon a "no-knock" entry on such information as an "exigent circumstance." The time of day, other circumstances, from the standpoint of the homeowner might suggest a home invasion. Does the Second Amendment trump the 4th, or vice versa?

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