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Washington as Weimar

By Jack M. Balkin

It is 11:45, and the lead story in tomorrow's Washington Post announces the collapse of talks on bailing out the auto industry because of the unwillingness of Republican senators to agree to the plan supported not only by the Democratic leadership but, just as much to the point, also by the White House. Some especially relevant paragraphs include:

It wasn't clear whether GM could survive until January if Congress failed to reach a deal. Its chances of acquiring federal loans would be significantly improved with the new legislature because the Democratic majority will likely be large enough in the Senate to defeat any GOP filibusters attempts.

Auto industry executives and lawmakers supportive of the industry have also said they hope that, if Congress does not come to their rescue, the Federal Reserve would step in with a loan or Treasury Secretary Henry M. Paulson Jr. would reverse his opposition to tapping the government's financial rescue program. He and others in the Bush administration have argued that the rescue program is intended to stabilize the financial services industry and should not be used for other purposes.

In discussions with the White House this week, congressional Democrats again raised the idea of funding the automaker bailout out of the rescue program. White House spokesman Tony Fratto said yesterday that the administration "has not engaged" lawmakers on the proposal.

"The most responsible thing to do is to get" separate legislation for the automakers, he said. "And that's what we're working to do."

As University of Pennsylvania political scientist Ellen Kennedy and others have pointed out, the invocations of "emergency powers" in Weimar were a response to the joint occurrence of severe economic crisis and the inability of the Weimar parliament to act because of its fragmentation. One can wonder, at this particular moment, how much our current situation is analogous. Because of the completely undemocratic procedures of the Senate, by which a minority can prevent legislation from coming to the floor, the Congress will be unable to act at least for another month or so, i.e., before the more Democratic Congress (though still short of the magic 60 votes in the Senate to guarantee the overcoming of Republican obstruction) takes power.

The response to this breakdown of legislative process is to call for what some might regard as the exercise of fiat executive power, the executives in question being either Fed Chair Ben Bernanke or Secretary of the Treasury Paulson. (The so-called President is truly almost irrlevant at this point.) The alternative to action is a great "natural experiment," i.e., the bankruptcy of several of America's iconic industries, along with many other companies who depend on the the auto manufacturers. See, e.g., another story in tomorrow's NYTimes on the fears being expressed by suppliers to the auto industry. "[T]he hypotheticals about the domino effect of the companies? troubles through the vast network of auto supplier firms ? which employ more than twice as many workers as the carmakers ? are becoming real.

So it is interesting to speculate about the near future: 1) How much will the stock market decline tomorrow? It is already down 5-6% on the Tokyo and Hong Kong markets. 2) Exactly how many major companies will follow GM into bankruptcy, with attendant job losses, cutting off of medical benefits, and the like? 3) At what point do people start engaging in political "direct action" in protest against the inability of government to act because of undemocratic rules, which, by stipulation, are perfectly constitutional, that serve only to illustrate how truly dysfunctional our Constitution is at the present moment.

Yes, I know that there will be 57 Democrats (including two independents and assuming that the Illinois vacancy will continue for a while) in the Senate on January 6 and that Barack H. Obama will become President on Jan. 20th. But what makes otherwise sensible people believe that it is just fine that our Constitution forces us to wait for those blessed events and to refuse to discuss even the possibility that some constitutional reorganization should accompany the remarkable reorganization of the American economic system that is going on, with out without congressional approval, before our very eyes? Or is it that what we are going through is guaranteed to be a singular event that could not possibly reoccur at any time in the future between an election day and the coming to power of electoral winners? Could any rational person really believe that?

Full post as published by Balkinization on December 11, 2008 (boomark / email).