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Power and authority in time of crisis (continued)

By Jack M. Balkin

In a Huffingtonpost posting, Jim Kuhnhenn suggests that some Democrats are becoming frustrated by Barack Obama's purported refusal to take the reins of leadership with regard to the economic crisis. In particular Kuhnhenn cites a recent speech by Barney Frank:

"He's going to have to be more assertive than he's been," House Financial Services Committee Chairman Barney Frank, D-Mass., told consumer advocates Thursday. . .

"At a time of great crisis with mortgage foreclosures and autos, he says we only have one president at a time," Frank said. "I'm afraid that overstates the number of presidents we have. He's got to remedy that situation."

Given our defective Constitution, I am genuinely curious what the "remedy" would be. Obama could, presumably, indicate more strongly his views on the current subjects of controversy, including the (un)wisdom of bailing out the Big Three auto manufacturers. But, when push comes to shove, Barack Obama has no more legal authority to affect the present crisis than do any of the readers of this posting; he no longer even has whatever legal authority might be attributed to a senator, given that he has resigned that position. At this point, he is simply Citizen Obama, having only the power of persuasion.

An additional vital question is the audience he must persuade. After the new Congress convenes on January 6, 2009, President-elect Obama would be speaking to a significantly more Democratic Congress than is now the case. Until then, again thanks to our defective Constitution, the Congress would be far more closely divided, and Republicans in the Senate could easily rebuff any advice given by Obama, especially, obviously, if the legal president who has no apparent interest in leaving office prior to Jan. 20 is offering contrary advice.

Much of the debate concerns the decisions being made by the Secretary of the Treasury to spend the $700 billion more-or-less blank check voted him by Congress in October. Even if one views Sec. Paulson as being independent from President Bush, perhaps on "realist" grounds that no one in the world takes Bush seriously on the economy, that doesn't mean, of course, that his decisions will necessarily be the same as those that would be made by Sec. Geithner. Is there any way to give Geithner the relevant authority to countermand Paulson prior to Jan. 20? I'd be extremely surprised, but I welcome the intervention of those who are convinced that any of the defects in our Constitution can be remedied by "workarounds" that will provide happy endings to our constitutional dilemmas.

Full post as published by Balkinization on December 04, 2008 (boomark / email).