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Legal Commentary

: Balkinization

When does a political/economic crisis become a constitutional one?

By Jack M. Balkin

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The lead story in tomorrow's NYTimes, "Bush Officials Urge Swift Action on Rescue Powers," begins as follows: "The Bush administration, moving to prevent an economic cataclysm, urged Congress on Friday to grant it far-reaching emergency powers to buy hundreds of billions of dollars in distressed mortgages despite many unknowns about how the plan would work." I take it that it is increasingly obvious that most members of Congress will vote on a piece of legislation they almost certainly will not have read and even fewer members will be able to understand even if their eyes have passed over the legislation. But that is not my main point. ]

The article also notes that Democrats are justifiably curious why the Bush Administration is suddenly willing to supprt a massive new governmental intervention and the expenditure of somewhere between $500 billion and $1 trillion, which will inevitably lead either to a tax increase to pay for it or a hidden tax increase called inflation, at the same time it has adamantly resisted supporting far less costly social welfare programs for, say, medical care for children. So, not surprisingly, the current plan seems to include some of these social welfare expenditures in addition to the Paulson-Bernanke bailout bill. I strongly support such add-ons and would be appalled if the Democrats acquiesce in passing a "clean bill" that speaks only to the Wall Street crisis.

Given that the Democrats almost certainly have the votes--indeed, will John McCain or someone like Susan Collins, who faces strong opposition in Maine, dare to vote against programs to aid ordinary Americans--to pass add such programs, is it thinkable that George Bush would dare to veto such legislation? If he did dare to, would that count as a "constitutional crisis," even though no one would have behaved illegally (unlike many of Bush's actions with regard to the so-called "global war on terror," which may constitute a quite different sort of "constitutional crisis")? The point is that the standard-form operation of our political institutions would, in this instance, perhaps lead to a "cataclysm," should Congress and the President decide to play a game of chicken, or have what Eric Posner and Adrian Vermeule label a "constitutional showdown" with each other. The easiest way to avoid that, presumably, is for the President to realize that he really cannot use the power that the Constitution gives him. But once we recognize that it would be criminally irresponsible for the President to use his power in this kind of instance, we might ask why we are so tolerant of policy-based presidential vetoes in so many other instances.

In any event, current events are providing a wonderful lesson in the most important aspects of the contemporary American constitutional order, and, once more, Tocqueville's oft-quoted comment that all political issues are ultimately judicialized is exposed as the preposterous nonsense it has always been. (A tip of the hat to Mark Graber for being the first to emphasize this point in his scholarship.)

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