Legal Commentary

Presumably we can stumble along on the international economy front because Ben Bernanke and Henry Paulson are available to make proposals and promises that other countries might take somewhat seriously. But what about foreign and military policy? The New York Times reports that Admiral Mullen, the outgoing head of the Joint Chiefs, gives a "grim" prognosis about the future of our efforts in Afghanistan. And, of course, the United States is negotiating with Iraq about the de facto terms of withdrawal. Perhaps the US does have a government inasmuch as George W. Bush has the legal authority to command the military and to make (though, of course, not to ratify) treaties. So one might note that another version of that joke was that (your unfavorite president) proved that it could be dangerous to have a president. Needless to say, I think that Bush proves this in spades.

He will obviously be out of office in fourteen weeks (Oh blessed day!!). But in the meantime he can make decisions. Why in the world should he be able to make such decisions for even a day following November 4, when we an assume that President Obama or possibly even President McCain would be unhappy with them in various respects? When Attlee beat Churchill in 1945, he rushed off to Potsdam to replace the defeated PM, who, whatever his stipulated greatness, had lost the authority to make commitments that would be binding on the UK. Yes, I know we have a presidential and not a parliamentary system, but we could surely modify it to make sure that a completely discredited president is not in the position that Bush is now in, i.e., "negotiating" with foreign governments and making important military decisions that will inevitably affect the administration of his almost infinitely more legitimate successor. All one has to do is to mount a national campaign for Dick Chency to resign and be replaced, immediately, with the winner of the election, who will then immediately succeed Bush upon his own resignation the moment after the new VP is confirmed by Congress and takes his oath of office. This requires no amendment or convention. It simply requires "putting country first."

UPDATE: I note the following paragraph from Karen DeYoung's article in the Washington Post on the Administration's "urgent" review of its failed policy in Afghanistan:

As the U.S. presidential election approaches, senior officials have expressed worry that the situation in Afghanistan and Pakistan is so tenuous that it may fall apart while a new set of U.S. policymakers settles in. Others believe a more comprehensive, airtight road map for the way ahead would limit the new president's options.

Full post as published by Balkinization on October 09, 2008 (boomark / email).