Sandy Levinson Is Right

Everyone’s bemoaning the fact that since Bush is a lame duck and Obama won’t take office until January 20, Washington is basically leaderless, even as the financial crisis worsens badly. But (almost) no one is taking the obvious next step. If we need stable leadership between election and inauguration, but the Constitution interposes a months-long delay, the Constitution is broken. Newly elected officials should take office immediately, and we should amend the Constitution accordingly.

Of course, that’s a fix for the long run, thanks in part to our insanely high thresholds for Constitutional amendments. Those thresholds have thwarted any number of healthy fixes for our often-dysfunctional system of government. (They’re also partly responsible for our broken national discourse around Constitutional interpretation, but that’s another rant.) We’re not getting an amendment through before January 20, even though one should be one of President Obama’s first-term goals.

That leaves us with a one-off problem: how to make Obama President now. Our defective Constitution does leave a path, even though it has to be cobbled together out of scrap parts: Cheney resigns, Bush nominates Obama to be Vice President, Congress confirms him, and then Bush resigns. Obama could be President tomorrow. Of course, this plan would throw Obama’s extensive transition plans into disarray, but that’s a small sacrifice to fill the gaping leadership void in Washington right now. In a country with a rational electoral system, Obama would have had his team ready to go on Election Day.

Could it happen? The obvious obstacle is Republican desire for partisan entrenchmant. Between now and January 20, the Bush administration can finalize dozens of rulemakings and burrow dozens of political appointees into career civil service positions. When you look at it straight on, it’s a scandal that this is what’s standing between us and actual leadership in this time of crisis. But of course, Bush is going to go out exactly as he came in: undemocratically.

Count me as a fan of the “insanely high thresholds” for amendment. The constitution should be hard to change. Plus, I seriously doubt that courts would stop distorting the text just because the process for changing it legitimately became easier. (Granted, there are a few counterexamples— the court probably wouldn’t have made the commerce clause meaningless if FDR had gotten the powers he wanted through amendment— but even somewhat lowered barriers to amendment would be more difficult than just going to court.)

Now this is just silly. You don’t have to be a Bush fan to believe that he’s not responsible for a defect in the Constitution.