Saturday, February 01, 2020
Nightmarish possibilities in the coming year (1)
Twenty years ago, Bill Eskridge and I published a co-edited book Constitutional Stupidities, Constitutional Tragedies, the first part of which asked a number of distinguished scholars to pick what they believed was the stupidest (and potentially most dangerous) feature of the Constitution. Only Mark Tushnet at that time had the wisdom to suggest that the correct answer might be "the whole thing." My own nomination was the eleven-week delay between election day and the inauguration of a new President, which has regularly left the US without a truly functioning government during the transition from one party to another. (There are other problems as well, including its contribution to our de-facto elective monarchy in which we vote for candidates without having any firm ideas of whom they might even be thinking of appointing to the Cabinet.) In any event, consider the following nightmare:
The electoral college is stupid. I agree with that.
But the lame duck period isn't. I admit it is POSSIBLE to not have it (Clement Atlee famously replaced Churchill at Potsdam after Churchill was voted out by the British electorate). But a transition period allows time to staff the government, and the risk of an occasional Marbury style midnight appointment is no reason to eliminate that.
The Constitution is an amoral charter. Written by slaveholders, it definitely should not be treated as if it is this amazing charter of human rights. It obviously isn't.
But it does function, it resolves some major issues plausibly, and it has an amendment process that can be used to improve it.
And it has lasted two and a quarter centuries.
There's no constiutional crisis. There's no crisis of democracy. As long as you don't pretend the Constitution is anything more than it actually is- an outline of what 18th Century genocidal racist rapists thought a government might do; and as long as you realize that only good people, not a Constitution, can make a government good, the Constitution works fine.
About the 11-week delay, I see that the 20th Amendment prescribes January 20th at noon for the new president to take office, but the Constitution does not establish the date of the election, does it? Where is that prescribed?
Even if Election Day were January 19, with the Electoral College voting on the morning of January 20, couldn't Trump and the Republicans accomplish at least some of the nightmare scenario in a matter of minutes? The pardons, for example?
We don't agree on much, and as this hysterical loathing of the Constitution overtakes you, less as time goes by. But it would be *nice* if the lame duck period could be substantially reduced.
Nice, though. Not existentially necessary to cope with the Lovecraftian scale evil of Donald Trump.
This would require a formal shadow opposition government, though. Difficult to implement without further officially entrenching the duopoly parties.
I agree that the delay between election and inauguration is foolish, but your scenario with Ginsburg is all on her rather than the Constitution per se -- she should have resigned in 2012-13. This could be fixed without reference to the hiatus by placing term limits or age limits on the Justices.
Henry's point about pardons is well-taken. One plausible solution to the pardon power is to limit the timeframe so that, for example, no pardons can be issued in a presidential election year from Sept 1 until after inauguration. That wouldn't prevent all abuses, but it would make the president or his (still all "his") successor pay a political cost. I think there's an argument that Congress could establish this limit under the N&P clause, though I have no idea how even an honest and non-partisan Court might rule.
I assume your part II will deal with the problems for this coming election, which I see as more likely to cause serious harm.
"I think there's an argument that Congress could establish this limit under the N&P clause, though I have no idea how even an honest and non-partisan Court might rule."
I think an honest Court would rule that the pardon power is explicitly a power of the Executive, (Not merely the branch, the Executive himself!) and no substantive regulation of it by Congress can be N&P.
The N&P clause expressly states that Congress has power "To make all Laws which shall be necessary and proper for carrying into Execution the [enumerated] Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
The N&P clause would provide as much basis here, as it would for a law prohibiting Presidents from exercising any other power the Constitution grants them. Could congress ban election year vetoes?
Even by current N&P jurisprudence, ("Convenient, and, eh, never mind") it would be a nonstarter.
Does Constitutional Stupidities, Constitutional Tragedies (which I have not read) ask what is the worst feature of the Constitution as written or as rewritten by progressive courts over the years?
As written, the Ninth Amendment is the weakest link because it does not define the unenumerated natural liberties protected from government infringement. This vagueness allows courts to ignore the amendment rather than apply what Randy Barnett calls a presumption for liberty.
As rewritten by the courts, one is tempted to say the entire progressive state. However, the most dangerous and totalitarian feature of this state is the absolute bureaucracy exercising legislative, executive and judicial power over nearly every aspect of our lives without answering to the people and indeed largely out of sight of the people.
My suggestion wouldn't prevent the President from granting pardons, it would just regulate it. If you take your extreme position, then you nullify this portion of the N&P clause altogether.
And again I ask, what is the textual basis for your position?
It would deprive the President of a power explicitly granted him, for a considerable fraction of his time in office. That's not 'making regular ' exercise of the power, it's just taking it away.
It would regulate the power for a period of 3.5 months out of 48. I wouldn't call that a "considerable fraction".
It is sexist, ageist, arrogant, and stupid to demand Ginsburg resign in 2012. She had every right to feel she had more to give the country as a judge, and at any event she had no ability to accurately forecast SENATE elections or McConnell's obstruction strategies. It is bad enough to say she has to divine who will win the Presidency.
Democrats who say such things have 1/100th the intellect of Ginsburg.
The necessary and proper clause doesn't allow Congress to substantively limit powers that solely reside in other branches, and that would be a 9-0 SCOTUS decision.
You can call taking the power away "regulating" it all you like, and the proposal is still going to be DOA. Even the 'elastic' clause can only be stretched so far.
You need to prepare for a second Trump term and maybe a unified GOP Congress.
Absent a recession, voters have reelected every POTUS seeking a second term. Even POTUSes like FDR and Obama presiding over stagnant economies with high unemployment were easily reelected.
Voters have never elected an open socialist for POTUS. At the height of his popularity, Eugene Debs barely earned a million votes. Consequently, Democrat SOP has been to import socialist and fascist policy under the banners of progressivism, liberalism and then progressivism again. Obama denied his own socialist past and ran as a "post ideological" candidate to get elected. After voters fired their "moderate" wing between 2010-2016, the Dems in 2020 are running multiple open socialists, forcing the surviving "moderates" to adopt socialist policies. Echoes of 1972.
The Democrats fear and loathing of Donald Trump, culminating in the soon to be failed impeachment circus, appears to have fired up Trump's working class base and unified GOP voters around him.
Trump is barnstorming swing states with mega-rallies drawing between 25,000 to 50,000 attendees, many of whom are lining up the day before to get auditorium seats or are standing out in overflow parking lots to see their hero on large TV screens, often in freezing temperatures. Over a quarter of attendees are not Republicans and many are African American and Hispanic, which matches polling showing increasing minority support and approval of Trump. In stark contrast, the Bern is drawing crowds in the hundreds and Biden could not fill a fast food restaurant during the latest Trump mega-rally in Des Moines.
Even more important may be the unification of the GOP behind Trump. Election gurus keep overlooking that the Donald lost over 4 million normally GOP voters to Johnson and McMullin in 2016 and still won the swing states. If these voters come home in 2020, it is hard to see Trump losing reelection.
Finally, Trump has taken a page from the Obama campaigns by obtaining data from the masses of voters attending his rallies to micro-target likely voters and then doing Obama one better by fully employing Facebook's marketing tools to deliver campaign ads and collect tens of millions in small donations. Compared with his self-financed 2016 campaign, Trump is swimming in money this time around. Ditto the GOP. When they took a breath from their breathless propagandizing for the Trump impeachment circus, the NY Times reported panic among Democrat election professionals over Trump's success in social media venues the Dems thought they owned.
Just a further comment on Ruth Ginsburg. This is a woman who is going to go down as one of the most heroic liberal women in American history.
In contrast, most of her critics are people who haven't done sh*t in their lives and spend their time jerking off on the Internet while other people are making social change.
It's really, really sh*tty that members of that second group of deadweights have the audacity to try to trash the legacy of the woman who put sex discrimination into the equal protection clause.
If the left wins, she'll go down in history as a heroic figure... until the left notices some imperfection, and she gets airbrushed out. If the right wins, she won't fare as well in the short run, but maybe better in the long run, because the right isn't quite as keen on rewriting history.
Apart from ideology, she should have retired some time ago, she's only a part time Justice at this point.
While I agree with much of your comment, Dilan, I'd like to point out that it's not just RBG's critics your comment would apply to. Myself not excluded, of course...
"As long as you don't pretend the Constitution is anything more than it actually is- an outline of what 18th Century genocidal racist rapists thought a government might do; and as long as you realize that only good people, not a Constitution, can make a government good, the Constitution works fine."
Lol, with defenders like this, the Constitution certainly doesn't need enemies!
"because the right isn't quite as keen on rewriting history."
Of course they are. The statues and honors they defend from change are whitewashes of history. It's just they like it when they've been around for a while or if they nod to those in power.
"It is sexist, ageist, arrogant, and stupid to demand Ginsburg resign in 2012."
Is it similarly appalling to you when the GOP purposely looks to young nominees (which means passing over older ones)? I, for one, am shocked, shocked to see people having political calculations regarding SCOTUS justice nominations and resignations!
"This vagueness allows courts to ignore the amendment rather than apply what Randy Barnett calls a presumption for liberty."
Which is atextual nonsense moreso even than 'penumbras and emanations'
"the most dangerous and totalitarian feature of this state is the absolute bureaucracy exercising legislative, executive and judicial power over nearly every aspect of our lives without answering to the people"
Nonsense, they answer to the courts all the time as well as the Congress and the Executive which can reverse them essentially whenever they want (and there's many examples where they do). Bircher Bart just hates that leaving things in the operation of federal government to actual experts in them is, thank god, a popular idea.
"Absent a recession, voters have reelected every POTUS seeking a second term. Even POTUSes like FDR and Obama presiding over stagnant economies with high unemployment were easily reelected."
Lol, remember Bircher Bart GUARANTEED Obama's defeat in 12, now he cites it as evidence for his current analysis of chicken entrails level hypothesis. This is not a serious man.
Henry and Mark,
There should be concerns about pardons. In theory they are a necessary last chance for justice and mercy, but they also can be weaponized, corrupted and abused (see the KY governor recently, or the case of Haley Barbour in the past). I'm not sure I can be sold on your idea on how to restrict them Mark (though I'd love an amendment to that effect), but I will say I think abuse of or corrupt use of the pardon power is one of the many exemplary impeachable offenses contra the Deranged Dershowitz Doctrine.
Lol, with defenders like this, the Constitution certainly doesn't need enemies!
It's necessary to remember these things, in a world where so many people purport to claim that originalism is the sole legitimate means of interpretation of the Constitution. Do we really want to be wedded to some what some really awful people meant when interpreting the thing?
We should try to follow the Constitution (and amend it where necessary) because it's the charter we have, and the rule of law means something. But in the end, government is about the people are in it. The United States murdered, raped, and stole the labor of slaves and committed repeated genocides against Indian tribes in its early history because its government was founded by and full of really awful people who wanted to do that. The Constitution couldn't save the Republic then- and it can't prevent the public from electing bad people to do bad things now either.
But it can set out rules and procedures to follow, and as I said, the rule of law is worth something.
Is it similarly appalling to you when the GOP purposely looks to young nominees (which means passing over older ones)?
Not really. But it is appalling that the Constitution gives them all life tenure. Lifespans have improved and we really should go to an 18 year or 36 year term limit.
And by the way, Dershowitz is ridiculous, and of course an outrageous pardon can be an impeachable offense.
Indeed, if you were to think of something a President might do that really would get the bipartisan consensus necessary to remove, pardoning some absolutely awful criminal would do it.
So saying 'we should pick party-man Jones instead of party-man Johnson for our nominee because Jones is younger and will give us more years on the court' is fine but 'party-man Johnson should quit because it's likely he could pass before our window to get party-man Jones in his place closes' is appalling? Come on, it's the exact same thinking.
"it can't prevent the public from electing bad people to do bad things now either"
It can make it harder for people in the future to do what a super-majority of the present think is bad though, and there's no reason why someone shouldn't advocate for that.
I do agree that set terms are better than life tenure. They achieve the same thing benefit (judicial independence) without the bugs (such as judges serving into spans where cognitive issues are much higher).
"I'm not sure I can be sold on your idea on how to restrict them Mark (though I'd love an amendment to that effect), but I will say I think abuse of or corrupt use of the pardon power is one of the many exemplary impeachable offenses contra the Deranged Dershowitz Doctrine."
An amendment would certainly be safer than a statute, if for no other reason than that a party controlling both Congress and the Presidency could simply repeal the statute and grant the pardons.
My basic view, though, is that presidents have too much power and that failure to recognize Congressional power in the N&P clause is one reason for that. In this particular case, the text is clear that (a) the pardon power is a granted power, and (b) that Congress has the power to pass legislation to "carry that into effect" (a synonym for "to execute") granted powers. The only issue, then, is whether such legislation can restrict the power in order to eliminate corruption. I don't see why not. I have no doubt that Congress could pass a law criminalizing acceptance of bribes in return for a pardon. Even the CinC power has restrictions; no reason the pardon power shouldn't.
Oh, and as for impeachment for abuse of pardons, I hardly think that needs much discussion after the latest farce. But in any case it wouldn't be of any use at all in the last couple months of a president's second term or in the case of a president who lost after one term.
Mark I've thought that the grant for some of Congress restrictions on the CiC come from their grants of war making, regulation of the armed forces , etc
That's reasonable, but absent the N&P clause a strict reading of those clauses might not stretch that far. It's hard to sort out sometimes when courts are claiming to be applying one power while implicitly relying on the N&P clause.
We would, of course, be far better off if we got rid of the eleven-week hiatus, but that would require also getting rid of the idiotic electoral college, which causes the delay.
Does it? The electoral college could meet earlier. I can understand some grace period to allow for transition and room to deal with any electoral controversies. We have a constitutional amendment that pushed things up to January. We could push it up more.
The pardon power is such that there might be a reason for a need for immediacy to deal with some public disorder or whatnot. Practice alone suggests any significant change (even a restraint for a short period) would be deemed problematic even if an argument like Mark's could be credible. One suggestion there would be to set up an organized pardon process that would take time to complete. This would not take away the executive power to pardon but it was regulate how it would occur. The NPC possibly would allow that. And, yes, impeachment can address abuse of the pardon power. Theoretically.
Just for completeness, I have defended the decision by RBG to not retire including as a function of her role as federal judge and her life time understanding of her role. Breyer -- who "sexists" also have pushed him to retire, also has a understanding of his role in our system that makes him deciding to retire so that a Democrat can replace him harder to expect.
Obviously, many judges timed their retirement in part for that purpose. But, both Breyer and RBG has a view of their roles that makes it harder to see. Plus, RBG finally (after Stevens retired at 90 -- he very well might have been forced to retire in the middle of the Bush Administration if some health problem occurred as Brennan had a stroke in his eighties) would be the leader of the liberal wing.
Calling it "ageist" is question begging -- we regulate by age for a variety of reasons and retirement ages (or concerns for older people who had health issues) is not ageist as a rule. Age, unlike race, can reasonably be used more often. As to not realizing all she done, people are aware of what she did. The fear that Trump would pick her replacement sort of respects her over fifty years of public service and wanting her to be followed by someone of her caliber. Some people, e.g., wanted term limits for senators even for people like Ted Kennedy & didn't disrespect his life in public service for thinking that.
Obviously, it is her call, as it was Stevens to stay on until 90. It also is at this point pointless to dwell on it. She did it. I wish her good health for a year or more. And, I do think a term limit here would probably be sensible and it's one of things that somewhat more than others might actually have a chance of happening.
In my view, Ginsburg wanted to accomplish important things on the Court. She put that at risk by choosing to stay on. Maybe she'll win the bet, in which case no harm no foul.
Her thought processes probably factored in various things and being the senior member of the liberal wing was likely a factor. The fact that Stevens staid on for so long, delaying her seniority there, is something to think about. I also think she bet on Clinton winning in 2016 too. And, other things.Post a Comment
As to winning the bet, she also set forth a notable precedent that will influence others to some extent. So, that might be a factor too.