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Howard Schweber Headshot

"It's a Wonderful Constitution!"

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Here's the scene. Democratic leaders of Congress are called to a closed meeting at the White House. During that meeting the most senior, the most respected officials in the government present the case for the unthinkable: America faces an existential threat. The Democratic leaders, shaken, return to their Houses and sound the alarm. Their members - along with the Republican members, of course - pledge to work in a bipartisan fashion to give the President the powers he needs to get the nation through this crisis. The administration announces a dramatic and sweeping course of action. The Congress, with its Democratic leaders, affirms the president's authority to act in response to the emergency.

Armed with this affirmation of his authority, President Bush orders the invasion of Iraq. I'm sorry, did you think this was about the financial crisis?

I have serious doubts about the plan the White House has announced for dealing with the crisis in the financial sector. I wonder about the system of incentives that results from a guarantee that the federal government will purchase bad debts from banks on an essentially selective basis - doesn't this encourage smart banks to game the system by taking on bad debts that the government will then assume, and produce a differential subsidy for banks that distorts the system of rewards and consequences we call a "market"? Are we ushering in our own version of Japan's "Lost Decade"? And so on.

But first, let's recognize that what happened this week was the run-up to the Iraq War, rescripted for an economic setting. Once again the Democrats in Congress, terrified by the prospect of Armageddon-like consequences ("mushroom clouds!" "A second Great Depression!" "Cephalopods falling from the sky!") fell all over themselves to embrace and support a plan that has three salient features: 1) it was invented in a hurry, 2) it grants unprecedented and ill-defined powers to the executive branch without any consideration of the duties - yes, I said duties, dammit - of Congress to participate in governance, and 3) it has almost unimaginably consequential implications for the future, none of which have been discussed in any serious way.

There are plenty of people who know more than me about the economics of it all - although the people I know who work on Wall Street are, frankly, terrified. But at least for now I will leave those questions for others. Nonetheless, there are a class of questions that I cannot completely ignore. I know they are in poor taste, and probably demonstrate my inability to grasp the exquisite subtlety of modern politics. But I can't help myself. So here goes. I'm going to ask a question that should never be asked: under what possible interpretation is this constitutional?

The case I'm thinking of is called Home Building and Loan Association v. Blaisdell. That's 290 U.S. 398 (1934) for those of you scoring at home. Remember It's a Wonderful Life? Remember Bailey Building and Loan? Well, even Bailey B&L had to act when a borrower simply stopped paying - they had to foreclose. But in the early 1930s, there were more foreclosures going on than anyone had ever expected (stop me when this sound familiar). Minnesota passed a law saying that banks could not foreclose on properties just because their owners had stopped paying their mortgages. The Home Building & Loan Association (seriously, is there a better exemplar name for the valorization of "small business" than that?) sued, claiming its constitutional rights were being violated. Long story short, the building and loan lost; sorry George, you're out of luck.

The Supreme Court made an interesting argument. "The question is not whether the legislative action affects contracts . . . but whether the legislation is addressed to a legitimate end and the measures taken are reasonable and appropriate to that end." Chief Justice Hughes disagreed. "Emergency does not create power," he wrote. "Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted in a period of grave emergency. Its grants of power to the federal government and its limitations of the power of the States were determined in the light of emergency, and they are not altered by emergency." During the Truman administration, the immortal Justice Robert Jackson put the burden squarely on Congress: "only Congress itself," he wrote, "can prevent power from slipping through its fingers."

You might think that we all would have spent the past five years contemplating those words. You might think that members of Congress, in particular, would have spent the past five years in serious self-examination, both as individuals and as representatives of their institution. You might have thought that at least the Democratic members of Congress would long ago have reached the conclusion that never again - Never Again! - would the threat of mushroom clouds or falling rains of cephalopods, presented in a closed meeting and accompanied by a demand that no details be released to the public "for fear of a panic" . . . well, you might have thought that Democratic leaders of Congress, if no one else, would refuse to dance this particular two-step again so soon.

I have thought about this carefully, and I am unable to identify the constitutional source for the authority of the executive branch to expend $1 trillion to prevent financial institutions from suffering the consequences of their own stupidity in extending bad loans or purchasing (or insuring) mortgage-based securities without demanding or examining the underlying valuation data. Does that mean that the interventions that are being proposed are bad ideas? Certainly not - although they may be. But where, exactly, in this process is Congress? I'm glad Chris Dodd feels the need to tell us that he supports the President's efforts because of the crisis . . . but how about sharing with us some of the information that led him to conclude that there is, indeed, a crisis? It's quite clear that there is a problem, don't get me wrong, but is it really the function of our congressional leaders to rubber-stamp the decisions reached behind closed doors by unelected administration officials, and to grant those officials emergency powers that enable them to control the distribution of numbers with twelve zeroes following the initial units digit?

We - yes, WE - gave the President power to take us into an indefinite and debilitating war without accountability or consultation. Now we are giving the same president the same authority over our own domestic financial institutions. Let me be clear: I do not for a moment doubt that the crisis is genuine. I do not for a moment doubt that this is an emergency. What fills me with doubt is the apparent and unexamined assumption that our Constitution is a temporary luxury to be dispensed with in moments of extreme need, rather than a blueprint for exactly what it takes - what kind of grim fortitude, relentless commitment, and gnaw-your-leg-off integrity it takes - to get through an emergency with our political values intact.

Of course, this is a discussion that no reasonable person would have during these times. This is a discussion for academic theorists, or else wacko fringe candidates from the Constitution 'R Us Party or the True Believers PAC. We serious people, who worry about the real consequences of actual events have no time to think about the imaginary constructions of constitutional philosophy. Our economy is at risk, our prosperity is in question, and we have an election to win.

So I understand why anyone reading this is likely to respond with impatience and a certain degree of scorn. Still, there should be some among us who strive to elevate the conversation, who think it is their very role to call our attention to the deep questions that the exigencies of the moment might drive out of our consciousness. We might call those persons "leaders."

As we contemplate the next forty-odd days of the presidential campaign, we may remember the words of Tom Stoppard:

"It costs little to watch, and a little more to get caught up in the action. If that's your taste, and times being what the are."

"What are they?"