Home -> Law Blog Directory -> Legal Commentary Blogs -> Balkinization

Legal Commentary

: Balkinization

It may be morning in America, but the Constitution still plagues us

By Jack M. Balkin

Consider an op-ed in the LA Times by Warren Christopher, who was one of the heads of Bill Clinton's transition team before he was chosen to be Secretary of State. The first paragraph sets the stage:

The work of the president-elect has begun. There is no time to savor victory, no time to ease into the job. Two hot wars and the greatest economic crisis of our time have combined to create an unprecedented sense of urgency. The oft-repeated advice to hit the ground running isn't very helpful when that ground is roiled by violent seismic activity

So what follows? "Obama's key economic and foreign policy advisors should be selected by Dec. 1 and confirmed promptly after the inauguration." Moreover, Mr. Christopher adds the following message:

Major policy agendas should be agreed on, legislation prepared and executive orders drafted -- all before the inauguration. It is a crucial time to set priorities and to demonstrate that key campaign promises will be fulfilled. One line, however, should not be crossed. The nation can have only one president at a time. The president-elect should not take responsibility for, nor appear to endorse, decisions that are properly those of the incumbent. This is especially true with an outgoing administration that seems bent on making profound and troubling last-minute changes in the rules and regulations affecting civil liberties, abortion rights and the environment.

So why doesn't it occur to Mr. Christopher to use his valuable space in the LA Times to suggest that our transition period is much too long and that we simply can no longer afford to take 13 weeks to select the major leaders of the new Administration, that, indeed, "We the People" might even have a right to know before election day who is on the very short list for Secretaries of Defense, State, and Treasury, and Attorney General (and, given global warming, Secretary of Interior and head of EPA)? He does write that "Early planning wasn't always as important as it is today. But the adoption in 1932 of the 20th Amendment, moving inauguration day from March 4 to Jan. 20 and thereby shaving more than 40 days off the transition, produced a sea change. That left a mere 2 1/2 months. " "MERE"? In what world is 10 weeks, when faced with a presumptively "urgent" crisis, "mere"? What would his response be to an doctor who said that he had a very dangerous disease and that an operating room would become available in a "mere" ten weeks?

Moreover, a story in today's NYTimes is helpfully titled "Bush Warns of Vulnerability in a Transition." But, of course, it doesn't occur to the President that perhaps one way to decrease the vulnerability, part of which comes from the fact that we will not have, for the next 74 days or so, a government that combines both legal and political authority, is to announce that Vice President Cheney has agreed to resign immediately and that he (President Bush) will follow upon the Congress's confirmation of Barack Obama as the new Vice President under the 25th Amendment.

Wouldn't it be wonderful if President-Elect Obama appointed a commission to study whether the US can any longer afford the "mere" 2-1/2 months of transition and to pledge to support an amendment, should the commission so suggest, that might actually reduce his term from a full four years to, say, 3 year, 10 months (if the next inauguration is on November 20, 2012)? It would be a selfless, completely patriotic gesture, which would presumably draw bi-partisan support. I'm probably just dreaming, of course. Instead, we will be treated to more banality from Warren Christopher and other "old-hands" who quite literally cannot comprehend that we should have the same willingness to challenge constitutional verities as did the framers of the 20th Amendment that so sensibly moved up both inauguration day and the date at which the new Congress came into session. (A new amendment might well move up that date as well. There's simply no reason that major decisions should be made by a lame-duck Congress.)

[UPDATE: A story just posted on the Times on a meeting of the President-elect with his economic advisers notes that "[n]o incoming president in modern times has been so pressured to begin governing, in effect, before he is sworn into office." But, of course, "governing" requires legal authority to go with political authority. The story doesn't indicate exactly who is putting on such "pressure," but one might hope that those doing so would, at least eventually, come to realize that the Constitution is a problem and not a solution.]

Full post as published by Balkinization on November 07, 2008 (boomark / email).