The Constitution as a Regulatory System: Inaugurating a New President
Almost everyone these days, regardless of formal political identification, agrees that one implication of our present discontent is the need to revamp our system of regulation vis-à-vis the domestic and international economy. Republicans and Democrats no doubt disagree on particular solutions, but few indeed are currently willing to repeat the often mindless maxim, "If it ain't broke, don't fix it."
The paragraph above is almost banal, unlikely to provoke much criticism. But consider the fact that the Constitution of the United States is also a "regulatory system" inasmuch as it structures our political institutions and affects significantly what is, and is not, possible within our system. My own view, set out at length in my book Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It), is that we are seriously disserved by some remarkably unchanged aspects of the Constitution of 1787. We should be addressing the possibility that this 18th century document should be made suitable to a 21st century reality in the same way, say, that the Securities and Exchange Commission or the Federal Reserve should be revised to take account of developments over the last half-century. Unfortunately, the very discussion of such a possibility is totally absent from contemporary American politics, whether one looks at national leaders or even the leading pundits, of both the right and the left. A banal truth with regard to standard-form "regulatory agencies" has become almost literally unsayable with regard to our most basic regulatory instrument.
Let me note only one way that the Constitution-as-regulatory-system disserves us, the ten-week hiatus between election of a new president and his inauguration. I pick it because it is both obvious and of immediate relevance. Gordon Brown and Nicholas Sarkozy have called for a summit conference to discuss what needs to be done to stabilize the world economy and, presumably, create new sets of institutions to respond to the realities of the tightly interconnected global marketplace. No particular date has been set. Assume, though, that a summit conference couldn't be arranged before, say, November 4, 2008, and that it would be completely inadvisable to put it off until, say, January 20, 2009.
So the practical question is this: Who would represent the United States at such a conference that took place during that period? One obvious answer is George W. Bush, who, after all, is guaranteed by the Constitution to have a feudal tenure at the White House until January 20, 2009. But it is also obvious that Mr. Bush has lost almost all semblance of political authority with regard to the economy (and much else). He retains legal authority, but, as Richard Neustadt pointed out in his classic book Presidential Power some half century ago, any effective president needs the "power to persuade" as well as the legal power to order. As of November 5, 2008, we are almost certain to know who Mr. Bush's replacement will be, and that person, as of that date, will possess enormous political authority, but, of course, absolutely no legal authority. This, to put it mildly, is most unfortunate. It is possible, of course, that the winner would be invited to attend by Mr. Bush, but would that mean that the US would be represented by "two presidents" or, in a practical sense, by "no president." (Who would resolve any disagreements between them?)
As it happens, one doesn't need to amend the Constitution to "solve" this problem at least for this year: Dick Cheney could resign on November 5, to be replaced by the winner of the election. This could take place simply by following the procedures of the 25th Amendment, which allows a president to nominate a new vice president should the office become vacant, subject to congressional confirmation. Upon such confirmation, President Bush could then resign, to be succeeded by the newly installed Vice President. That person, whether Barack Obama or John McCain, will then be able to combine political and legal authority and to attend any such summit conference as the full-fledged representative of the United States. (Vice presidential resignation, incidentally, is not unprecedented. Not only is there the case of Spiro Agnew, who resigned in disgrace as part of a plea bargain; a more palatable precedent, perhaps, is John C. Calhoun's 1832 resignation as Andrew Jackson's vice president nine weeks before the end of his term, so that he could become senator from South Carolina.)
The "only" problem, of course, is that it is close to impossible to imagine either Mr. Cheney or Mr. Bush "putting country first" and providing this "quick-fix" for what is obviously a genuine deficiency in our Constitution's regulatory system, the 10-week hiatus between election and inauguration. So we may be destined to experience 10 weeks in which the United States lacks a fully-functioning government, as was the case during the Secession Winter of 1860-61 and the Depression Winter of 1932-1933, neither a happy precedent, of course.
An earlier generation, faced with the even worse inauguration date of March 4 had the wit to amend the Constitution, via the almost unknown, because unlitigated, 20th Amendment, which moved Inauguration Day up to the present January 20. Today, January 20th is, both literally and metaphorically, far close to March 4 than to November 4, and we should have the same wit demonstrated by the framers of the 20th amendment to revise our Constitution accordingly to provide a far more sensible inauguration date. The only problem is that any significant move nearer election day would require facing up to another dreadful feature of the Constitution, the electoral college. That, too, is part of our initial "regulatory system" that has most certainly outlived whatever usefulness -- which was, initially, the protection of slave states -- it may have had.
It would be wonderful if our current willingness to raise basic questions about our broken regulatory system extended to questioning the very heart of that system, the Constitution. Earlier political leaders like Woodrow Wilson and Teddy Roosevelt were more than willing to do so. We are very much in need of their spirit today.
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There's an even simpler solution: Bush can take along a Senate delegation. Obama, McCain and Biden all go--- regardless of the Nov. 4 outcome--- and lend their authoritative heft to whatever Bush agrees to. Anything odious Bush agrees to can be undone by his successor in January.
I'm wary of anyone who argues of big-picture changes to the constitution to bring it to heel to the needs of "modernity." I'm sure a lot of people think that pesky First Amendment is inadequate to the task of living in a post-9/11 world.
While I personally would like to see the electoral college abolished, I doubt it could happen. Amending the constitution required 38 states to ratify the amendment, and with 13-14 states having only 3 or 4 electoral votes - which means their relative influence would be reduced by factors of 2 or 3 if direct popular vote were used - I'd doubt any of them would ratify it. The agreement that's been mentioned above where states would agree to cast all their electoral votes for the winner of the national popular vote would be far easier to implement - it would only take 11 states (CA, TX, NY, FL, PA, IL, OH, MI, NJ, NC, and GA) to pass the 270-vote minimum and force the remaining states to adopt it as well. Of course, there might be some difficulty getting the deep-red states on that list to agree, but it would be possible to get some other states to compensate.
The electorial college is a piece I think should be tossed out as it represents not the public but the set up places where a person as we know can be elected by popular vote and still lose. I believe our country would be better served by the vote by the people completely. Other than that we have had adjustments made through amendments over the years which were some not too wise but were appealed so there is a still ways to deal with the "old" document. That Bush and Cheney cannot leave fast enough has been the thoughts of many for years but until we get through this election we are still stuck with the same as we have been stuck with and praying they can not do total damage to our country before they are gone. Bush will do all he can for McCain and in that we much be sure to watch for and hope to stop any plan to undermine our votes.
What "18th century document?" The 22nd Amendment only dates to 1933. The length of time between election and the new congress's taking office was usually 13 MONTHS prior to 1935, and the transition between presidencies was almost four months long.
Actually the inauguration date was set in 1933 by the 20th Amendment. So this would be the case of following a 20th century requirement.
I agree, in part, with the second argument but I disagree completely with the the first. A change from the current electoral process using the electoral college is antiquated; however, the time between the election and inauguration is a necessary one and the "powerless presidency" argument is week. It would take me more time than I have at this instance to elaborate but I did enjoy the time to ponder this blog post gave me. Thanks.
*weak> Dang it, anyway.
I'd like to hear Senator Obama address the laws that are supporting a Unitary Executive branch of Government. When is the Patriot Act, the Military Commissions Act, the FISA Bill (with retroactive immunity), Executive Order 51, the illegal Signing Statements, the Defense Authorization Act, the dissolution of Posse Comitatas (Standing Army on U.S. soil) and finally, what's to be done about the High Crimes & Misdemeanors that have been done to the American People. After all, running roughshod with horses over peaceful protest is sooooo 12th Century.
Barack Obama for President 08
Usually when someone mentions "unitary executive" it is a signal that they do not know what they are talking about.
Usually when somebody accuses somebody else of ignorance based on two words, they don't know what they are talking about.
I'm 51 years old. I wrote a paper about the dangers of the electoral college when I was in junior high school. As soon as my teacher told the class about it I was worried. I must have been pretty smart back then because everything warning about it I gave in that paper came true these last eight years. The electoral college short circuits the will of the people and must be eliminated. The popular vote is the only thing that counts. It's pure democracy.
I'm 72 years old and my senior year in high school the national debate topic was "Resolved: that the president of the United States be elected by direct vote of the people." And even in those - and in a southern state a decade before the Voting Rights Act of 1965, when southern states largely disenfranchised their African-American citizens - it was still dead easy to win on the affirmative side. (I was affirmative, and I think we lost two debates all year out of thirty-odd. Of course, we were very good debaters, but so were a lot of our opponents...)
I am glad that you recognize the Supreme Court for what it is, a regulatory system, not a legislative system.
It takes time for the new President to prepare for his upcoming job. The 2000 election dramatically showed us the necessity of a date when the election results must be certified. Without a deadline Al Gore might STILL be requesting a recount. His supporters still are.
After the Electorial College certifies the results there is barely a month for the old President to prepare to move out and the new President to move in. It is not just a matter of moving. It is also a matter of the new President selecting his cabinet, secretaries, undersecretaries, and all the other staff necessary to run government. If he shows up January 2 and starts his work is he going to plan and implement his ideas with Bush's staff? Hardly. Organizing the team to run the government is too important to be rushed through in a few days.
Most of the best economic minds in the country have jobs. In order to use them they have to resign their old positions and arrange to have their assets put into a blind trust fund that they do not manage. Again it can not be done quickly. Then each one of them have to make arrangements to move to Washington, maybe sell a house (good luck in this economy).
If you think this can be done in a few days you are sadly mistaken.
Obama has already long begun the transition process. He will hit the ground running. McCain's transition team just started but most of his admin. will be comprised of Bush incompetent ideological holdovers. There is more truth to the charge of "McSame" because of this fact than most people understand.
So all his cabinet members have resigned their old jobs, sold their homes, and moved to Washington, and are just waiting for the inauguration? I don't think so.
I agree with the comment that the electoral college has outlived its usefullness. It has only seemed to serve as a way to subvert the will of a majority of Americans. It is partly responsible for the situation we find ourselves in today. George Bush was not elected by a majority of the people. It is a big reason gerrymandering exist, and in my view has been a hidden sword given to the racially intolerant.
"It has only seemed to serve as a way to subvert the will of a majority of Americans."
That's exactly what it's supposed to do. Read about the Founding Fathers, they hated the idea of majority rule.
If the majority of the American Public makes an informed decision as to the best leader for the country, I think it is wrong for a minority to get its way because of an outdated electoral process. I think you are wrong in the way you worded your opinion. A president does not rule, that would be a king or emperor.
A president has a job and is an employee not a ruler.
The last eight years of republican rule seems to be the best example I could give. Another example would be the woman that embarrased herself at the republican convention. I don't know about you, but im not comfortable with people like that making the decisions about who has what authority in this land that is more culturaly diverse than anytime in the lives of the forefathers. It is past time for this issue to be adressed in some way.
I disagree with the suggestions of the series of early resignations of the VP then President. To me this would creat a lot of confusion, difficulties in foreign government relations and not allow a truly functioning government for several months. The great powers we give our President in our system, our importance in the world, the tremendous amount of work needed to carefully do the transition, the huge size of our country all to me discourage a much shorter time period. The Amendment process is cumbersome and takes years for good reason as we change our organic law.
I do believe some issues should be addressed promptly. Most particulary would be the pardon and commutation powers of any President, especially in the last 90 days in office to prevent abuses of that power. President Clinton misused that power, giving a number of very conterversial pardons. I suspect that in the last days of office of GWB will also do so, to preempt any investigations and convictions of VP Chenney on down for their well documented horrible abuses of law and the Constitution. I wish we could come up with a law by Congress giving them some say as to who the President would use this power with to prevent subervision of justice. We should also change the Consitituion to limit the use of 'signing statements' , although more carefully by Constitiutional Amendment.
There's nothing in the Constitution about signing statements. That was a fabrication of the febrile mind of Karl Rove. The signing statements as far as I know have yet to come to the test of judicial review, but I seriously doubt the concept would survive such review. I think there is a good case to be made for the position that such statements have in fact no force of law.
I concur with previous comments that opening the doors to a Constitutional convention at this time would be ill advised. In fact I don’t see why this needs to be a Constitutional issue.
When I saw the impeding issue of the Summit conference , I came up with my own conclusion. As President, George W. Bush is entitled to select whom he wishes to attend the conference and the obvious choice would be the President-elect. Regardless of what decisions, advice or conclusions are drafted at the conference, the Constitution already mandates the course of action on them. Anything requiring Congressional approval would still require Congressional approval, whether the U.S. representative was the President or not.
My suggestion is fully Constitutional and avoids the whole resignation scenario. Can George W. Bush be prevailed on to act accordingly? That I do not know. Suffice it to say that the precedent this would set may serve in the future in similar circumstances. I just feel that an earlier transition of power has already shown itself inadvisable.
If this proposed Constitutional ammendment had been in place prior to the 2000 Bush/Gore election. I can imagine the chaos that would have overcome this nation if instead of a lame duck President and two litigious contenders for the new office, we would have had no acting president and two inaugur: over which inauguration would the Chief Justice have presided?
If you’re gonna tackle new Ammendments, I vote for an explicit right to privacy.
While I agree there are flaws in the Constitution, I don't think the ones pointed out in this article are the most significant ones, or that changing the Constitution is a viable strategy for bringing the structural change we need. From my perspective, the biggest problems in US government stem the unequal allocation of power allocated by wealth. In the current financial crisis almost everyone decries the common taxpayer bailing out the wealthiest institutions, but what happens? This imbalance is propagated by all three branches of government, with minimal justification from the Constitution.
Changing the inauguration date would be relatively easy, but it would change little. Not all of the change would be positive. In the 2000 election, a shorter lame duck period would have given more weight to the Bush v. Gore decision. A change like this could open the door to much more voter disenfranchisement.
Regarding the electoral college - I agree it's an anachronism. But it's not a significant impediment to a shorter lame duck period.
If we were to move for meaningful Constitutional change, one direction might be adopting the U.N.'s Universal Declaration of Human Rights - not politically viable in the near future. A shorter term goal might be real campaign finance reform and elimination of the concept that unlimited use of wealth is freedom of speech. But the key will be organizing popular support, not focusing on the Constitution.
John Adams proposed limits on the rights of corporations. It was one reason that he had Senators elected by state legislatures rather than by direct plebiscite: It is more costly for a corporation to purchase an entire legislature than it is to influence an individual in the senate. It may be impossible to impose limits on corporations now that they can afford to purchase entire political parties but that would be a key to making the Constitution work for the people.
Technical difficulties at the margins such as the transition time or the electoral college are not worth tinkering with until the issue of balance of commercial interests against citizens' welfare has been rectified.
Corporate power is the single greatest threat to our republic.
100% public financing of all federal elections, no exceptions.
While your concern about transitional issues surrounding the change of government is worthy of debate, I think there are much more substantive issues we must first address.
I want to go the heart of the Constitution to its representative form of government. I think its a failure for today's time. Under practically any democracy, a government with its executive at 28 percent support and a legislative with less than 10 percent would have fallen. We now have a government that is NOT LEGITIMATE.
The Senate is an anachronism.
The Supreme has become joke.
The Electoral College is anti-democratic.
White Supremacy is in EVERY NOOK AND CRANNY of this country and must be expunged.
The Supreme Court just saved democracy today on Ohio. The Senate in necessary and usually is excellent as a check on the House (and vice versa), and what are you going to do to change the electoral college? (a national Florida debacle?) Ha!
Q. How did the Supreme Court save democracy in Ohio?
Q. Why is the Senate necessary in today's America?
Q. What am I going to do about the electoral college?
A. Hopefully, we can have a debate about it so we can reach concensus on how to proceed.
There are efforts to correct the electoral college dilemma, one I am not sure I agree with, where some states are now considering passing state laws to direct their electors to vote for the candidate who won the popular vote.
http://www.nationalpopularvote.com/pages/misc/888wordcompact.php
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