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Legal Commentary

: Balkinization

The high cost of denial (that we have a deficient Constitution)

By Jack M. Balkin

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One of the lead stories in this morning's New York Times begins by noting the loss of 553,000 jobs last month. "Not since December 1974, toward the end of a severe recession, have so many jobs disappeared in a single month ? and the current recession, far from ending, appears to be just gathering steam." There seems to be general agreement, even among Republican economists, that a very strong stimulus package is necessary. My interest was piqued primarily by the following paragraphs from the linked story:

Despite the deterioration of the labor market, Democrats in Congress and a lame-duck president remain in a standoff over rescue measures.

At its core, the stalemate between the Republicans and the Democrats springs from fundamentally different views about the nature of the crisis and the role of government in resolving it. The White House contends that it has rightly focused on the credit and housing markets, while the Democrats see economic problems that can be resolved only through broader intervention.

New efforts to adopt a broad economic package are likely to wait until the new president takes office and Democrats have bigger majorities in Congress. That delay poses the possibility of a deeper recession, according to some experts.

President Bush, appearing in front of cameras on Friday morning at the White House, said he was ?concerned about our workers who have lost jobs.? But he offered no hint of softening his opposition to either a stimulus package or a bailout of the automobile industry, saying that the measures already put in place by the Treasury Department and the Federal Reserve to ease credit problems would take time to work.

Shortly after his appearance, a White House spokesman, Scott Stanzel, dashed any expectation of a change in policy when he said that officials expected a stimulus package would ?happen in the next administration.?

Needless to say, but I'll say it anyway, I view this as further evidence (as if any were needed) of the immense price we pay for a deficient Constitution that a) leaves in office the most completely discredited president in American history (save perhaps only for Herbert Hoover); b) leaves us to the mercy of a lame-duck Congress that gives potentially decisive power to repudiated Republican senators who nonetheless retain power anyway for another month; and c) deprives the president-elect, because of the delay in inauguration, of any legal authority to make decisions. Instead, we are blithely told, "the next administration," which does not take office for another six weeks, will have to pick up the dung left by the Bushies, including, of course, the last-minute administrative regulations that are just another example of our constitutional dictatorship in action.

Of course, maybe we won't have to wait completely until "the next administration" if Congress, immediately after convening on January 6, 2009, passes a stimulus bill, though this assumes that a) the two Maine senators senators and the ever-opportunistic Arlen Specter, who is justifiably worried about surviving the wrath of Pennsylvania voters in 2010, refuse to join a Republican filibuster and, of course, b) George W. Bush, who has all the legal authority given to a President by the Constitution, decides not to veto any stimulus legislation that does not meet his approval.

The fact that the Constitution itself may be the direct cause of a deepened recession is presumably a small price to pay, but what, exactly, is it that justifies the price? It's not as if we're talking about preserving basic liberties and accepting the proposition, say, that it's worth letting X guilty people go free rather than to convict (or, especially, execute) an innocent person. Though isn't it interesting that many people who are so casually dismissive of any criticisms of the lunatic hiatus between election and inauguration are also willing to accept all sorts of restrictions on what some believe to be First Amendment or Due Process rights in the name of "protecting national security"? To the extent this last sentence is correct, then one really does have to account for a pathology that makes it presumably "reasonable and pragmatic" to compromise our basic liberties even as we cling to, and treat as unchangeable, the verities of our presidential election-and-inauguration system.

It's too late to save us from the further depradations of the Bush presidency. But why, oh why, is no one within mainstream politics willing to emulate the drafters of the 20th Amendment and proposing changing this dreadful feature of our Constitution? Why wouldn't that count as "change we can believe in"?

Full post as published by Balkinization on December 06, 2008 (boomark / email).

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