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Still more notes on our defective Constitution

By Jack M. Balkin

Once again, Dan Froomkin offers an invaluable summary of information in a column titled "Bush and Cheney's Last Shot," which begins, "Did we really expect President Bush and Vice President Cheney to go quietly?" It discusses, and gives hyperlinks to, a bunch of articles on last minute efforts of the Administration, ranging from issuing further anti-regulatory adminstriative rules to the possiblity that the Federal Bureau of Land Management may be planning to "sell oil and gas leases in pristine wilderness areas in eastern Utah that have long been protected from development, according to a notice posted this week on the agency's Web site." To be sure, the Clinton Administration also engaged in some last-minute actions, though I wonder (and the wonderment is real, not rhetorical), if they were as extensive as some of those apparently being proposed by the Bush Administration.

In any event, it is only because of our defective Constitution that a lame-duck who is reviled by the candidates of both major political parties--one expects John McCain to sue Obama for libel in suggesting that he might actually think well of George Bush's policies--and is the most unpopular president in the history of presidential polling--and has apparently even lost the support of Texans, 55% of whom "disapprove" of his conduct as President--continues to have the legal authority to make our lives worse up to the very minute of noon on January 20, 2009. And we're not even talking about the forthcoming pardons of torturers, Scooter Libby (and Ted Stevens?). And there are still thirteen weeks remaining to bomb Iran....

Should President Obama be turned out of office in November, 2012, it will be no more legitimate for him to continue imposing his policies than it is for President Bush to be doing so in the waning days of his term. This is why there should be wide bi-partisan agreement that the present hiatus between election and inauguration makes no sense save from the perspective of supporters of a discredited incumbent presidenct. Incidentally, my wife is currently in Columbus, Ohio, where Arnold Schwartzenegger joined John McCain. Not surprisingly, Arnold was apparently more energetic and inspiring than the now-almost-pitiful McCain, who has sold his honor for a bin of ashes. And, as I wrote many months ago, it is only because of the offensive clause that prohibits Schwartzenegger from running for the office himself that he is not at this moment a strong candidate to go to Washington, possibly as an Independent (running, perhaps, with Michael Bloomberg as his VP). I wonder if Republicans will, once again, try to repeal the "natural-born citizenship clause" (which applies to Schwartzenegger whether or not, properly interpreted, it applies to McCain). If Sen. Hatch reintroduces his previous proposed amendment, I would hope this it would draw bi-partisan support, even if Democrats might legitimately fear a 2012 Schwartenegger candidacy more than that of any other Republican now on the horizon. (I personally expect Sarah Palin to settle for earning $5 million/year--or whatever Rush Limbaugh or Bill O'Reilly gets--as a talk-show host, probably her highest and best use.)

Full post as published by Balkinization on November 01, 2008 (boomark / email).