“Wartime” President

Steven Taylor at PoliBlog has a post today asking “what is a wartime president?” and which I highly recommend.

About halfway through he notes:

To truly see the President, and all future Presidents until terrorism is quashed, as “wartime presidents” is basically to say that the presidency, henceforth, is an office we should consider as a war office.

If “wartime” has become so “normal” that it will persist without any clear definition of when and how we will know we have “won” and if, therefore, “‘extraordinary’ is the ‘new normal’,” then:

If that is true, let’s amend the Constitution and rewrite the laws. “Normal” requires regular rules. Only “Extraordinary” should allow for unusual, temporary powers.

This is indeed the proper perspective. If we fail as a nation to find domestic spying without any oversight even as much as “bothersome” (to take one expression I saw on a pro-Bush blog) then we are implicitly saying that what we find bothersome is checks and balances themselves. I would hope we would not want to go down that road, which has been well travelled in post-Cuban Revolution Latin America, post-Soviet Russia, and elsewhere.

We may indeed need some serious consideration of constitutional, as well as statutory, reform, for–as Steven noted in another post today–the Article II defense, which states that the President has the authority for such acts as domestic spying under the Constitution, clearly fails the basic premise of the Constitution: No leaders is above the law, and checks and balances must be in place to guard against arbitrary (or overly “energetic”) executive power. But the energy needed to combat real threats is not inconsistent with the checks and balances of democracy. What is inconsistent is the assertion that the authority already exists–an assertion that becomes a public post-hoc justification only when the arbitrary acts themselves become public.

It may be that our checks and balances, as we currently practice them, are inadequate. We may need to delegate certain additional authorities, but those can come only with additional checks and balances to prevent the inevitable over-reaching.

If it is indeed true that the checks and balances are, on the one hand inhibiting necessary “energy” in the executive, yet on the other hand are not deterring arbitrary executive acts, then the cure is checks and balances of a different sort, not dispensing with them in the name of “emergency” and “war.” (Modest steps towards “parliamentary” accountability of the executive, anyone?)

If the rules, statutory and constitutional, are indeed unsuitable for the era, then only public debate and–to the extent the debate leads to a consensus on needed changes–actual reform of the rules can be the proper means of coping with an allegedly transformed situation. Otherwise, we are at least implicitly acquiescing in a descent into an authoritarian “national security” state the implications of which we can only begin to comprehend and the damage from which we may never be able to correct. If we cannot have this debate openly, and accept wherever it might lead–even if that is defeat of the party in power and/or impeachment and judicial proceedings against violators of the law–then it seems to me the terrorists have already defeated our democracy, with an assist from the cabal that has ruled from within the executive branch since 9/11.

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UPDATE: See Arms and Influence for a well reasoned take. Among Tom’s points are:

If you buy the argument, They can’t tell you any of those details–they’re secret, I commend you to look at how the Europeans and the Israelis handle terrorist threats. […] What’s striking, perhaps, about the age in which we live is how poorly the political class in this country has risen to the defense of democracy and the rule of law as most effective measures against terrorists, not quaint relics of a bygone age.

[The emphasis in italics is his; the bold is mine]

A time bomb under American democracy

Those are the words in an excellent post at Make My Vote Count. Of course, they refer to the US Senate and its malapportionment and the fact that it will only get worse unless something is done about it. But what can be done, given that the Constitution explicitly bans any amendment that would deprive states of equal representation. A time bomb indeed.

The day before the same folks discussed the other body in House of Horrors. Scary stuff, indeed.

Federalism and Constitution Day once more

OK, I relent. I was not going to say any more about this issue.

But Steven posted the other day a further clarification of a point he and I have been bouncing forth and back and forth again, with Scott also getting into the mix (and all of us making appearance in the comments to Scott’s post).

The main question, as I see it, is to what extent does Congress violate the principles of federalism when it imposes its policy will on the states through earmarks, mandates, and the like, outside its enumerated powers? My answer is, not at all, because the very principle of federalism is that the central and state governments each have their independent sovereignty and they are free to enter into mutually beneficial relationships or not, as each side sees fit. If states don’t want the mandate, they can refuse the cash and approach the policy their own way, with their own funds.

Steven, in his “fourth time” post, agrees that there is no real “federalism” issue raised when Congress sees a problem that states are more capable of administering and offers money in exchange for states addressing the problem under terms set down by Congress. He uses food stamps as an example (see the fourth paragraph of the just-linked post), and it is a good example. (As an aside, I am quite sure that he is right that this is an aspect of federalism that is not well taught in our schools, including, I would note, our universities. Outside of my classes, of course.)

So, what is Steven’s objection?

…what I find irksome is when the policy relationship entered into between the state and federal governments can then be used by the feds to adjust its demands on the states. Byrd’s rider in the appropriation bill is just that sort of ex post alteration to the contract…

But wait a second! This is the problem, I think: seeing policy bargains between sovereign institutions as contracts. That is the wrong analogy. It is an ongoing series of transactions, not a relationship governed by any single transaction as formalized as the word contract implies. A contract, properly understood, requires a neutral third-party enforcer. (Regular contracts among citizens and corporations, for example, being enforced under the government’s contract laws.)

Transactions between governments in a federation, on the other hand, are exchanges between independent authorities with only weak third-party enforcement. The judiciary can be involved if there is a question of constitutional jurisdiction, but it is not as if every individual transaction between federal and state governments is subject to judicial review. Besides, the judiciary in question is part of the federal government, even if the purpose of Senate confirmation procedures is to involve an institution that, at least in theory, represents states. (Increasingly it represents the party with the manufactured majority of seats, rather than the states, but that is another thread.)

I find it interesting—and it is a theme I am developing with coauthors on two projects, one on Mexican presidentialism and federalism, and the other on the US in comparative perspective—that the founders of the US Constitution were very explicit, in the Federalist Papers, about the transactional relationship they were setting up between the executive and the legislature: Institutions with separate agency that would have to work together to accomplish their respective goals. However, they did not elaborate a similar transactional relationship between national and state governments. They appeared to think of the levels as having a more separate existence.

Yet the very logic of the separate yet overlapping institutions of federalism mandate a theoretically almost identical transactional relationship as that between the separate but overlapping branches of any one level. If the founders did not foresee it this way, it is only because they imagined greater separation of tasks between the levels of government than between the branches of the federal government.

Yet, in their wisdom, the founders did not bar Congress from carrying out other functions beyond those explicitly enumerated. This allowed the functions of the federal government to grow without overtaking the sovereignty of the states. Each level still has to bargain with the other. And, because congressional power originates in part from the states (at least in theory), congress does not make laws in some sort of hypothetical vacuum in which the same interests arising out of the states are somehow not represented at the federal level.

Constitution day and federalism

Constitution Day is really tomorrow, and I already said most of what I have to say about it on Tuesday here at F&V, as well as on KPBS radio on Wednesday.

Nonetheless, while I mentioned in both settings the irony of the way in which Constitution Day was established—by slipping a mandate on schools into a large appropriations bill—I did not entertain the further question of whether the very act of making this mandate was itself contradictory to the Constitution. This raises questions about what is federalism.

The Volokh Conspiracy today posts an announcement of a talk at George Mason University:

Join Foundation Professor of Law Ronald Rotunda and Patrick Henry Professor of Law Nelson Lund for as they examine whether it is constitutional for Congress to use its spending power to reach down into the curriculum and culture of every school in the country and dictate what shall be taught, celebrated, or memorialized.

(I have to say that I have long been intrigued by the fact that a Professor Rotunda studies laws passed at the United States Capitol.)

Steven Taylor similarly notes how Congressional mandates attached to federal money provided to states “fundamentally alters the overall power of Congress vis-à-vis the states.” Thus with the system working this way…

the pure federalism of the Constitution itself, as delineated by Article I, Section 8 and the Tenth Amendment is not fully in operation.

I’ve never seen this as a problem. “Pure federalism” is the existence of separate sovereign levels of authority, an ingenious idea that the founding fathers committed to parchment on this day (well, more or less) 218 years ago. But nowhere does this federal constitution require that Congress give money to the states without strings, or that it give money to the states at all.

As a payer of federal taxes, I don’t want my tax money sent to states without strings (and here I am talking about far more serious matters of national policy than Constitution Day events). I don’t want to be Argentina or any of several other wholly dysfunctional federations in which federally collected taxes are transferred to state or provincial governments that have no acountability for the way they use the money, and no incentive to raise their own revenue to suppor their own spending habits.

If the states don’t like the strings, they have the sovereign right, under the federal form of government, to refuse the money and either forego the services it would pay for, or raise their own taxes to provide the services as they see fit.

As Steven put it, regarding the increased fiscal powers of the central government over time:

we are doing all of this en masse because we might get our federal money taken away.

Exactly. States can make policy on their own and raise their own revenues for it, or they can take federal money. If they choose the latter, Congress has every right to impose mandates on how they use it, in support of national policy, as conceived by national elected officials, accountable to their own constituencies (which happen to be located back within the various states). That is the essence—and purity—of federalism.

Constitution Day is coming

This Friday, September 16, marks the first official observance of US Constitution Day. The idea of a national day to commemorate the Constitution was a long-time project of Sen. Robert Byrd of West Virginia, and now it is upon us.

The day commemorates the final meeting of the Constitutional Convention in Philadelphia on September 17, 1787. (The 17th is a Saturday this year, so observances are planned in schools and elsewhere for Sept. 16.)

The law was not noticed at all last year when it was enacted—at least if a Lexis Nexis search of the phrase “constitution day” is any guide. Probably this is because it was approved as nothing but a rider to an appropriations bill.

But it sure is being noticed now, because among the provisions of the law is a requirement that all public schools set aside time for discussion of the Constitution in commemoration of the day. In the past week, newspapers all over the country have devoted stories to it. Typical is this one from the Daily Star of Oneonta, NY, noting that one local school superintendent:

found about the regulations recently while on an independent search on the Internet […]. He did not learn about the mandate through communications with state or federal education departments.

The Asheville, NC, Citizen-Times says the Day is “long overdue“:

The Constitution is the nation’s owners manual. It puts down in writing everything on which this nation was founded. It deserves our respect for the dramatic ideas it put forth – liberty, equality, rule by law, not men – and for its astounding longevity; it’s the oldest written constitution of any functioning nation on the planet.

And yet we know shockingly little about it. Most of us have hazy concepts that the First Amendment addresses free speech and the second guns and that’s about it. Constitution Day is a modest effort to remedy that.

I am inclined to agree.

As for my own connection to Constitution Day, and my interest in constitutions and politics more generally, it is quite literally in my blood. I am a descendant of George Read, who was among those who signed the Constitution 218 days ago this Saturday.