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Our Toxic Constitution

By Jack M. Balkin

I couldn't restrain myself when I read Robert Pear's article to appear in the Sunday Times, which begins, "The Labor Department is racing to complete a new rule, strenuously opposed by President-elect Barack Obama, that would make it much harder for the government to regulate toxic substances and hazardous chemicals to which workers are exposed on the job." The last remant of the mendacious "compassionate conservatism" that we were served up in 2000 (in 2004 sheer fear and the dishonesty of the Swift Boat ads was enough to elect Bush) is the use of presidential power--which has, I continue to submit, elements of constitutional dictatorship inasmuch as there is not a semblance of accountability re the Bush Administration's actions short of a long and expensive corrective administrative process--to assure that businesses will continue to be able to exploit their most vulnerable employees. "Public health officials and labor unions said the rule would delay needed protections for workers, resulting in additional deaths and illnesses."

To be sure, I realize that were a president-elect to take office the very next day, we would still bear potential costs of a lame-duck administration engaging in last-minute actions. But, among other things, these actions would potentially become burdens around the neck of the candidate of the President's own party--assuming he had the slightest interest in the welfare of his political party (as distinguished from the welfare of the entire nation). I must say that considerations such as this lead me more and more to believe that presidentialism is a system that might once have worked quite well in the US but, in the 21st century, has less and less to commend itself (even as I am completely overjoyed at the coming inauguration of Barack Obama).

In any event, I do think that Jack and other defenders of the extended transition should factor into their analysis the costs of such last-minute administrative shenanigans.

Full post as published by Balkinization on November 29, 2008 (boomark / email).