Just Above Sunset
Volume 5, Number 10
March 11, 2007

Design Flaw

 The world as seen from Just Above Sunset -

"Notes on how things seem from out here in Hollywood..."

Design Flaw - The Actual Problem with the US Constitution

Should one pay attention to Garrett Epps, the Orlando J. and Marian H. Hollis Professor of Law at the University of Oregon?  He's written two novels and one of them, The Shad Treatment,  won the Lillian Smith Book Award.  And there are the nonfiction books - To An Unknown God: Religious Freedom on Trial, which was a finalist for the ABA's Silver Gavel Award. And there's Democracy Reborn: The Fourteenth Amendment and the Fight for Civil Rights in Post-Civil War America, from last year.  He sometimes writes for The New York Times and The Washington Post.  When he was at Harvard he was president of The Harvard Crimson, and his law degree is from Duke. He spent a year clerking for John D. Butzner of the United States Court of Appeals for the Fourth Circuit.  He might know something.  On the other hand, he has this MA in Creative Writing from Hollins University. Perhaps he can keep the world of make-believe separate from the world of the law.

It's the real world he discusses in The Power of King George, an item which appeared in Salon on 1 February. In it he argues we're facing another constitutional crisis, a president claiming powers he may not have.  It's a raw power grab.  But the kicker is that the constitution will not save us this time. The constitution is the problem. It was simply designed badly.  And we're paying the price for that right now.

That's a novel argument, but he makes it convincingly.

First there's the context, a minor item in the news -

    Washington was treated to a curious American spectacle on Monday. A president repudiated by virtually every sector of the political system has responded by arrogating more power to himself.

    Under the executive order Bush signed Monday, federal regulators will answer to a new set of Bush appointees in each agency, who will determine whether their proposed rules properly serve the Bush agenda. As Peter Strauss of the Columbia Law School told the New York Times, "Having lost control of Congress, the president is doing what he can to increase his control of the executive branch."

This is just an emblem of the problem - "our uniquely powerful, politically unaccountable executive."  Of course we take our system for granted - "we are taught in high school that it was designed by far-seeing statesmen" and the balance of powers between the executive and the legislative and judicial branches provide an interplay where things get balanced out.  The idea is no one branch can grab all the power and do whatever occurs to them. But as Epps argues here, we hardly ever notice how very often the whole system misfires, "with results ranging from opera buffa (like the Clinton impeachment) to dangerous constitutional crisis (like the Nixon impeachment)."

And we are there again, at another misfire -

    Public opinion has decisively turned against the president's war in Iraq, with voters dissenting where our system says they should - at the polls. Congress, the supposed locus of the power to "declare war," is belatedly registering its disapproval of Bush's inept conduct of that war. Even the normally secretive military and national-security bureaucracies are busily signaling their objections to the commander in chief's plans.

    In virtually any other advanced democracy in the world, government personnel and policy would by now reflect this political earthquake: Either the chief executive would have resigned, or the parties would have coalesced in a government of national unity. But here, the repudiated leader is escalating his war and proclaiming, "I'm the decision maker." Regarding Congress, Bush said during a recent "60 Minutes" interview, "They could try to stop me from doing it. But I made my decision, and we're going forward." And now the president appears to be barreling toward a confrontation with Iran.

Americans are taught that the Constitution provides a legal answer for the problem here. What he is doing must be unconstitutional.

And that is the conventional wisdom - Adam Cohen in the New York Times wrote that "the Founders, including James Madison, who is often called 'the father of the Constitution,' fully expected Congress to rein in the commander in chief."

The problem is that's just wrong -

    the document they wrote gives the president more cards to play than Congress in most situations, particularly in the war-and-peace game. Congress can declare war, but the text says nothing about halting wars in progress. And the president is commander in chief of the armed forces without limitation on the circumstances or purposes of their use. Once the bullets are flying, Congress can dither, but the president acts.

Examples follow -

    In 1846, President James K. Polk ordered American troops into a part of Texas claimed by both Mexico and the United States. When Mexican troops attacked them, Polk demanded and got a declaration of war on the grounds that Mexico had started it. At the outset of the Civil War, Lincoln unilaterally proclaimed a blockade on the seceding states and raised an army (a clear congressional power) without any authorization. Afterward, he all but dared Congress to disavow his acts, which it did not. Harry Truman refused to ask Congress for any authorization for the war in Korea, claiming that the U.N. Charter empowered him to use U.S. troops there as he saw fit. Bill Clinton did the same thing in Kosovo, relying on a vote of the North Atlantic Treaty Organization. Both the Bushes consulted Congress before their Gulf wars - but both also publicly warned that they would simply ignore a "no" vote.

So the actual situation is that the president can do anything he'd like, as long as he says we're at war, and if congress has let him say that - in for a penny, in for a pound.  And that's what we have here.

In short, the men who designed the system didn't think things through. We're dealing with a basic design flaw.

How could this happen?

Epps provides historical context -

    The framers had attempted to design something the world had never seen before: an elected chief magistrate for a self-governing republic. The major models they had before them were high-handed monarchs on the one hand and the relatively impotent governors of the states on the other. We shouldn't be surprised that they got almost everything about the presidency wrong. But if the presidency were a car, Americans would be asking for their money back. It's hard to start, hard to steer - and nearly impossible to stop.

And the specific flaws can be identified.  Epps suggests the first is "the worst system imaginable for electing a president: an electoral college." All the framers wanted to do was protect the political influence of the slave states, and they didn't anticipate the problems of 1800, the crises in 1828 and 1876, and what happened in 2000. How could they?  Oops.

The second design flaw, in this argument, was not giving the president any performance reviews, as it were.  There's no quality control. It's just about impossible to dump any president who is just not good at the job.  As Epps points out, impeachment by both houses of Congress "seems to be reserved for cases of near-criminal conduct, and there's no equivalent remedy for incompetence or political bankruptcy." Being spectacularly bad at the job really doesn't matter.  The constitution is silent on what to do when everyone discovers they have a fool or a conscienceless cad running things. There's no recall provision here, although out here in California we have one and got rid of dull incompetent governor in a special election, and got ourselves Arnold Schwarzenegger. Well, he's not been boring, even if he can at times be dull, in the other sense of the word. Ah, what the heck, he's improving on the job.  But all that is irrelevant on the national scene.  There you'll find no real recourse.

The third design flaw though is a real problem -

    Finally, they drew the line between presidential and congressional power in such ambiguous terms that the president became, over time, nearly as powerful as, say, George III. The power to make treaties was probably intended to be shared; but from George Washington forward, presidents have signed and abrogated treaties at will. The president is to "receive ambassadors and other public ministers," seemingly a ministerial duty. Over time, this has been interpreted to make the president "the sole organ of the nation in its external affairs," with no role for the Senate but what the executive allows.

Thus you really can't blame any president for an "aggressive reading of ambiguous text."

And the ambiguity was no accident at all -

    A number of the framers thought that the entire "republic" business was either a mistake or at best a dangerous gamble, and that a real king would be necessary sooner rather than later. Leading this charge was Alexander Hamilton, who told the Philadelphia Convention that "as to the Executive, it seemed to be admitted that no good one could be established on Republican principles" and that "the English model was the only good one on this subject." Hamilton favored an "elective monarch" who would serve for life and who would have an absolute veto on all congressional acts and "the direction of war when authorized or begun."

    The text of the Constitution did not enshrine Hamilton's elected king. The document gave the president a four-year renewable term, permitted Congress to override his veto, and ambiguously divided the war power between the two branches. But Hamilton nonetheless had more to do with designing the office than did Madison or any other framer. As George Washington's secretary of the treasury, Hamilton was the creator of the "unitary executive" theory that Bush administration lawyers like to cite. With their own aggressive reading, Bush lawyers have argued, for example, that the president is the only member of the government authorized to interpret treaties; that the presidential treatment of prisoners of war and "enemy combatants" is unreviewable by any federal court; that the commander in chief power permits the president to order the warrantless wiretapping of anyone -- including American citizens -- as part of the war effort. John Yoo, the former Justice Department official now famous for his "torture memos," explained it thus: "The centralization of authority in the President is particularly crucial in matters of national defense, war, and foreign policy, where a unitary executive can evaluate threats, consider policy choices, and mobilize national resources with a speed and energy that is far superior to any other branch."

So John Yoo isn't a fool - he's a Hamiltonian.  And there's historical evidence -

    During the Washington administration, a crisis with France arose, and Washington proclaimed U.S. neutrality without consulting Congress. In an influential set of essays, Hamilton argued that the Constitution lodges in the president something called "the executive power" - not the limited prerogatives numbered in the text (those, he said, were just examples), but the authority to do anything that any national executive could, "subject only to the exceptions and qu[a]lifications which are expressed in the [Constitution]."

    Even the textual grant to Congress of the power to declare war, Hamilton argued, did not limit the president's power to order the military into hostilities; he could ask for war authority after the bullets began flying. At that point, "the Legislature is free to perform its own duties according to its own sense of them - though the Executive in the exercise of its constitutional powers, may establish an antecedent state of things which ought to weigh in the legislative decisions."

There's nothing new now. As Epps points out, and everyone knows, "presidents from Jefferson to Polk to Lincoln, from Roosevelt to Reagan, have taken military action unilaterally, notifying Congress after the fact - and in essence daring it to disapprove."

And now -

    There's little wonder that Bush and his inner circle believe that Bush can do anything he wants in Iraq. If Congress disagrees, the Constitution gives it only two tools, neither very promising. It can cut off funds, but that puts it in the politically dubious position of punishing (and perhaps endangering) the troops for their commander's policy blunder. Congress can also impeach the decider, but that remedy has proved traumatic and paralyzes the government for months on end.

    Beyond that, Congress may bluster, it may bluff, it may hold scathing hearings, it may pass symbolic resolutions - but it can almost never stop the executive juggernaut the framers designed.

But anyway, there is one really big final design flaw in the constitution, the fixed terms of office for the presidency -

    Even if you believe a "unitary executive" is a good idea, there remains no reason to allow one to remain in office after a catastrophic failure like Iraq. No coherent political theory justifies lodging the power of war and peace in a leader whose electoral mandate has dissipated. Failed presidents should resign after losing a popular vote of confidence, and the Constitution should provide an orderly means of succession in such an event.

    The framers wanted to avoid making the president the "creature of the legislature." The office would be too weak if the president could be removed by a simple congressional vote. But there can be no objection to making the president the creature of the people; and when the voters in a regular congressional election speak clearly, as they did last November, their verdict should be the equivalent of a parliamentary vote of "no confidence."

But that's not how the system works. The voters had their say in the 2006 midterm elections.  The president is simply reminding them that their votes don't mean anything. He's been advised carefully. Whoever the voters chuck into the House and Senate have no real power over his policies or actions. That is, actually, how things have been designed.  Live with it, for the next two years. Epps call this a design flaw.  The White House sees it as key design feature.

Epps -

    It would behoove us in the months ahead to spend some time designing changes in our system that will prevent such crises from happening over and over. The system of presidential election, inauguration and succession has already required no less than three amendments, and it still doesn't work very well. As Bush has proved to painfully sharp degree, more amendments may well be in order.

Ah, here he has moved back into creative writing.  No one is going to change anything. Alexander Hamilton is smiling.

This item posted - in its final version - February 4, 2007

[Design Flaw]

Last updated Saturday, March 10, 2007, 10:30 pm Pacific Time

All text and photos, unless otherwise noted, Copyright © 2003, 2004, 2005, 2006, 2007 - Alan M. Pavlik