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Legal Commentary

: Balkinization

A further Schmittian (and constitutional?) moment

By Jack M. Balkin

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A new article in the New York Times, tellingly titled "Congressional Leaders Were Stunned by Warnings," details a meeting that Ben Bernanke and Henry Paulson had with leaders of Congress.

As Senator Christopher J. Dodd, Democrat of Connecticut and chairman of the Banking, Housing and Urban Affairs Committee, put it Friday morning on the ABC program ?Good Morning America,? the congressional leaders were told ?that we?re literally maybe days away from a complete meltdown of our financial system, with all the implications here at home and globally.?

Mr. Schumer added, ?History was sort of hanging over it, like this was a moment.? When Mr. Schumer described the meeting as ?somber,? Mr. Dodd cut in. ?Somber doesn?t begin to justify the words,? he said. ?We have never heard language like this.?

....
Consider some implications:

1. This is exactly what Carl Schmitt met by an "exceptional" situation that requires legal transgression and perhaps even "dictatorship." Recall, incidentally, that "Sovereign is he who decides the existence of a state of exception." Well, it's easy enough to identify the "sovereign(s)" this past week: Ben Bernanke and Henry Paulson.

2. Glaringly absent from the list are the President and Vice President of the United States, who seemingly have played no significant role in attempting to meet the crisis. Mr. Bush may as well have returned to an elementary school to finish reading "My Pet Goat" for all of us relevance.

3. To some extent, of course, Bernanke and Paulson have been making it up as they go along, though, as Marty suggested, there may be some New Deal legislation that is best conceptualized as our own form of Article 48 (of the Weimar Constitution) inasmuch as it licenses close to anything goes responses to perceived economic crises.

4. Congress is now being "consulted," but one wonders if the consultation will be any more substantial than occurred, say, with the hurried passage of the USA PATRIOT ACT or the AUMF, where time was perceived as of the essence, with no time for old-fashioned hearings and deliberation. How many of us are saying some version of "things will never be the same after the events of this past week"? Thus Charles Shumer is quoted as saying, ?You have the credit lines in America, which are the lifeblood of the economy, frozen. That hasn?t happened before. It?s a brave new world. You are in uncharted territory, but the one thing you do know is you can?t leave them frozen or the economy will just head south at a rapid rate.? And the Times reporter notes, "As officials at the Treasury Department raced on Friday to draft legislative language for an ambitious plan for the government to buy billions of dollars of illiquid debt from ailing American financial institutions, legislators on Capitol Hill said they planned to work through the weekend reviewing the proposal and making efforts to bring a package of measures to the floor of the House and Senate by the end of next week. "

The consequence of the "things will never be the same" mantra with regard to September 11, a far less serious blow to the US economy than the shennanigans of America's "leading" economic institutions, was a massive shift of power to the executive branch, helped along by a Schmittian reading of Article II. And in that instance, the "executive branch" was very definitely personalized in the Great Decider and "unitary executive." That is not what is happening here. There is a massive shift of power to the executive, but it is the Executive as instantiated in a (professionally competent) Secretary of the Treasury and an institutionally independent head of the Fed. As suggested above, almost nobody wants the current President to get involved, Harvard MBA though he may be. And, instead of relying on Article II, we instead will see Schmittian readings of New Deal legislation. (And, of course, the New Deal itself, especially if analyzed through the lens of an Ackermanian "constitutional moment," is profoundly Schmittian. Indeed, the question we should be asking is whether we are going through a "constitutional moment" with regard to regulation and control of the banking and financial system, even if it lacks almost all of the legitimating indices that Ackerman painfully constructed (including elections). Though, interestingly enough, no one seems to want to define the present moment as a "constitutional crisis," only (if that is the right word) as an economic one. So is the corroboration of how truly deep the New Deal moment was in constructing a new political order?

5. It is also striking, incidentally, that neither of the candidates for the presidency has said much that is being taken as truly important (as against short-run political posturing), which raises further Schmittian questions about the degradation of our ostensibly "democratic" process of self-government. And, finally, does any sane person (here I go again) wish that Sarah Palin were playing a more active role in devising solutions to the present crisis? Indeed, is there any likely "crisis" in which we would wish Gov. Palin to be our Schmittian sovereign?

Full post as published by Balkinization on September 19, 2008 (boomark / email).