The Volokh Conspiracy

A comment to my reply post made me realize that I accidentally omitted the following paragraph in that post.

 A number of responses to my third post on executive primacy and domestic law argued that in fact in domestic affairs the executive is not unbound. These responses noted some recent examples where President Obama’s agenda was thwarted by Congress. However, we did not argue that Congress has no power at all, or that the president is an actual dictator! I mentioned, for example, that Congress defeated Obama’s attempt to secure a climate bill, which required Obama to (only incompletely) circumvent Congress using his regulatory powers. So is the glass half full or half empty? Answering this question raises a significant methodological problem: it is virtually impossible to tell when the president respects Congress’s authority out of sense of legal obligation, and when the president is in fact responding to the same political factors that motivate Congress to block his program—in other words, politics is the omitted variable. But history provides a useful perspective. There is a long-term trajectory, in this country and many other democracies, in the direction of executive primacy in domestic as well as foreign affairs, which one can identify only by comparing present to past. No one denies that the New Deal regulatory system gave presidents immense powers that did not exist prior to its creation, and that this system has only grown over the years. The financial regulation and health care laws are only the latest in a long series of delegations from Congress to the president, and they confirm that long-term trends have not been reversed in the Obama administration. We are talking about a continuous institutional development that reaches back almost a century and today is entrenched. It is time for legal thought to make its peace with it.

 In this, my last post on The Executive Unbound, I had intended to respond to as many comments as I could, but it turns out that there is a single theme of many of the comments, and I will focus on it with apologies to others whom I neglect. Before I continue, let me thank Eugene for permitting me to guest-blog on my new book. (Let me also respond to commentators who believed that I was trying to criticize the Obama administration or defend the Bush administration or perhaps vice versa. That was not my intention: while my arguments have implications for evaluating both administrations, those implications are complex, and discussion of them is best left for another forum.)

 The most widespread reaction is that Vermeule and I misperceive the Constitution. The original document did not establish a system of executive primacy but a system of checks and balances where the legislature was first among equals. A system of executive primacy could be put into place only through constitutional amendment that complies with the procedures set out in Article V, and no such amendments exist. If our current political system no longer complies with the Constitution, then it needs to be reformed forthwith.

 At a minimum, if only to achieve descriptive clarity, we need to distinguish the original design and the actual operations of the political system as it currently exists. Scholars tend to use the word “constitution” to refer to both phenomena, no doubt with the British example in the back of their mind—no one doubts that the British constitution has “evolved” over the centuries, and so there is no debate about whether the current British constitution is different from the “original” version, if an original version can even be identified. In the United States, the theory of originalism throws this type of thinking into disarray. Originalists (or some of them) argue that only one Constitution exists—the original written version plus amendments—and that if our current system departs from the original meanings, those departures are simply unconstitutional.

 The words used don’t matter much. The problem for originalists is the next step. One can argue that the current system is illegitimate and should be reformed because it violates the letter and spirit of the original understanding, but that argument was available to critics of executive power from the beginning yet made no headway against forces that favored constitutional (or, if you want, institutional) development in the direction of executive primacy. Those forces were simply too strong. Today, originalists—or at least those who enjoy influence such as judges—occupy themselves with the Bill of Rights, and, with the exception of the second amendment, the whole tenor of the movement has been oriented toward eliminating the various civil-liberty related rights manufactured during the last half century. Another group of people—not all of them originalists—want to dismantle New Deal regulatory institutions but this effort has utterly failed.

 There is no constituency for reforming the executive. That is a simple political fact about the United States, and therefore no one with real influence is willing to follow the necessary implications of originalism for executive power. Why not? Because Americans want a strong president. They want a strong president to defend the United States from terrorists, to deliver humanitarian interventions, to respond to natural disasters like Katrina, to resolve financial crises, to combat climate change, to fix the deficit. The call for leadership by a strong executive in response to the crisis du jour is reflexive. When a crisis strikes, and the government does not respond adequately, everyone complains that the president has failed to display leadership. This type of response is so reflexive that it is applied even to events that occur outside the United States.  Thus, a few days ago the New York Times attributed Japan’s travails to “the absence of a strong leader capable of rallying the nation.” Everyone understands the theoretical risks of a powerful executive—that was the now completely forgotten theme of the Bush administration—but, as a matter of mainstream thinking at least, those risks are worth taking.

 If nothing else, I want to convince you that arguing that we should return to the original Madisonian design is tilting at windmills—and will enjoy no more success than arguments that we should live in a night watchman state, return to the gold standard, create an agrarian republic, abolish private property, or set up a benevolent world government. All of these arguments are on the fringes—not because they violate the rules of logic but because they have no constituency—and that is where the Madisonian argument belongs as well.

 I don’t know what to say to people who continue to insist that because executive primacy violates the (original) Constitution, something must be done about it. Arguing that our current system of government is unconstitutional is like arguing that the original Constitution was unconstitutional because it violated the amendment procedures of the Articles of Confederation. It is a logical argument that makes no difference in the real world because ultimately what matters is popular sentiment, and popular sentiment has acquiesced in constitutional change without regard to the rules established to control it.

 In my previous two posts, I discussed the executive’s prerogatives with respect to foreign policy and military intervention—hot topics today. But until recently, the hot topic was the Obama administration’s aggressive domestic policy, which culminated in the Dodd-Frank Act and the health care law. Skeptics of the thesis of executive primacy could point to these two statutes as evidence that Congress is alive and kicking. It seems obvious that President Obama could not have reformed American financial regulation and health care law without the cooperation of Congress. So in what sense is the executive primary or “imperial”?

 The answer is that, for both statutes, (1) the Obama administration, not Congress, initiated the legislative process and set the contours of debate; (2) the Obama administration, not Congress, is the face of the laws and will be held responsible for their success or failure; and, most important, (3) the statutes delegated massive authority to the executive—hundreds of rule-making mandates—so that the vast majority of policymaking decisions will be made by executive branch officials over the coming years and decades.

 Add to this the Obama administration’s use of regulatory agencies to implement climate regulation, having failed to secure congressional support for a climate bill. Presidents always prefer congressional support if only for the political boost, but when they fail to obtain it, they can fall back on the immense regulatory powers they already enjoy. In this case, Obama can fall back on existing environmental statutes and his control of the EPA and other agencies that regulate industries that affect climate change—and obtain much but not all of what he wanted from Congress. Yet another example is Obama’s (and before him, Bush’s) reliance on existing regulatory authorities to resolve the financial crisis. The government poured hundreds of billions of dollars into the credit markets even before Congress signed a blank check for hundreds of billions of dollars more. The Dodd-Frank law shuffles around these authorities, and expands them at the margins, but does not fundamentally change them.

 The two statutes follow a pattern of congressional delegation reaching back more than a century, and which created the modern administrative state at the apex of which is the executive. What is most notable about them is not that they reflect a congressional resurgence (they don’t); it is that they decisively mark the recovery of the regulatory state after a three decade long ideological quasi-retreat. The debate about the size of the federal government will continue. But the debate about limited government is over. Both sides of the political spectrum have acquiesced in a powerful executive weakly constrained by Congress and the courts; the only live political question is what the executive should do with all that power. For more, see The Executive Unbound.

In my last post, I quoted Andrew Sullivan’s provocative claim that “Obama has now taken [the imperial presidency] to a greater height than even Bush.” Could that claim be right? I assume that Sullivan means that not even Bush went to war without congressional authorization, whereas Obama has shown himself willing to do so, but what of signing statements, wiretapping, torture, secrecy, and the many other items in the long bill of particulars against Bush?

The answer is that from the standpoint of executive power Obama and Bush are not much different in the main, and it is hard to compare the details. Bush acted inconsistently with some statutes, and his underlings propounded aggressive theories of presidential power which the Obama administration has abandoned, but the practical significance of these differences is limited. Bush got the authorities he needed by demanding them from Congress, and Congress accommodated him with the Patriot Act, the Protect America Act, the Detainee Treatment Act, the Military Commissions Act, and two AUMFs. Thanks to Bush, Obama enjoys the legal authorities he needs to conduct the conflict with Al Qaida—and so, until our next crisis, we don’t know how Obama would have acted under similar circumstances. The Obama lawyers are certainly less inclined to bloviate than the Bush lawyers were but again where it counts—have Obama’s lawyers ever stopped him from going beyond the edge of legality?—we have little information and some reason for skepticism. Obama has vigorously expanded the drone program, taken the war into Pakistan, robustly defended his right to kill American citizens abroad, and opposed litigation that could expose secrets about the treatment of detainees. What is most interesting is that there is currently little comment on the left about Obama’s extensive uses of executive power. There are some outliers who were celebrated during the Bush administration for their attacks on the presidency and who have persisted in their views now that Obama is in office, but who today are ignored. The only public apology from the left for the Obama administration’s executive branch jurisprudence that I am familiar with is this one by David Cole, who starts off vigorously enough but ultimately falls back on legalisms and ends up undercutting his defense in the second half of the article, where he laments Obama’s dependence on secrecy, which raises the question how we know what to make of Obama’s actions as an executive if we don’t know what they are. And that was before the Libya intervention.

Sullivan exaggerates but gets at the essential truth, which is that the imperial presidency has been institutionalized, as Adrian Vermeule and I argue in The Executive Unbound. On Congress’ tomb should be inscribed this epitaph, courtesy of a democratic congressman: “They consulted the Arab League. They consulted the United Nations. They did not consult the United States Congress.” As for the Republicans, with some trivial exceptions, they range from complaining that Obama did not communicate with them (nothing about consultation let alone a vote of some sort) to complaining that he did not act aggressively enough!

 Congress’ reaction to President Obama’s decision to launch a military intervention in Libya has been supine even by Congress’ usual standards. Congress vigorously debated and refused to authorize President Clinton’s military intervention in Kosovo in 1999 (Clinton intervened anyway). Congress debated and authorized the attacks on Afghanistan in 2001 and Iraq in 2003. Yet Congress has been mostly silent about the intervention in Libya. Why?

 President Obama is following a long line of precedents in which the executive lanched a foreign war without congressional authorization. The president disavowed these precedents during his campaign; he may or may not attempt to distinguish his campaign statement by invoking the UN security council resolution authorizing the attack, as Truman did for Korea. But this legal wrangling is all superstructure. Congress is disabled in numerous ways from making practical contributions to a war effort. It cannot prevent the president from starting a war, and it is nearly impossible to halt an ongoing war. Wars, then, simply become an opportunity for members of Congress to stake their reputations as hawks or doves for the sake of future elections.

 The Libya intervention provides an instructive example of the disabilities hampering Congress. Events in Libya unfolded with extraordinary rapidity, while the proper American stance depended on numerous constantly changing factors—the security situation in Libya, the attitudes of neighboring states and their populations, and the positions of foreign powers such as the UK, France, China, and Russia. A major source of complexity is that these various attitudes and positions depended in part on what other people thought the United States would do. The rebels might hold out if they believed that the United States would intervene, and by holding out possibly prevail without American intervention. The UK and France might sound the tocsins of war only as long as they believed that the United States would support them if they obtained the acquiescence of other countries, which in turn would care about American attitudes as well. As these various actors calculated their moves, they sent out feelers to the U.S. executive and received responses—promises, hints, suggestions. Eventually, international opinion coalesced and military intervention followed.

 Congress could not play a role. Lacking a leader who could commit it to a course of action, Congress could not make promises. Lacking a single mouthpiece, it could not be consulted. Foreign countries naturally turned to the president. Nor is it realistic for Congress to formally ratify the president’s decision if formal ratification involves the possibility of rejection. Then the next time that the United States is involved in a foreign policy crisis, other countries won’t know who to speak to, and who to believe.

 We live in a system of executive primacy, as Adrian Vermeule and I have argued in our new book, The Executive Unbound: After the Madisonian Republic. It is a consequence of natural institutional developments and necessities. The contrary view, which was written into the U.S. Constitution, could survive only as long as the United States was protected by two oceans from foreign threats and could focus on territorial expansion within a continent populated only by Indians, who were never a major threat—and even then it was honored more in the breach than in the observance. Those who are skeptical about the Libya intervention should address their policy arguments to the executive, and stop complaining that Congress has not authorized the war. Here is Jack Goldsmith arguing that Obama will invoke the UN Security Council resolution as his legal justification (why this is necessary after Clinton’s Kosovo intervention, which had no such resolution, is not explained); here is Andrew Sullivan arguing that Congress should do something, anything (“A congressional vote is also important to rein in the imperial presidency that Obama has now taken to a greater height then even Bush.”); and here is Ilya Somin’s post on the topic yesterday describing the protests of “several” (nine!) members of Congress.

I’m signing off from the Volokh Conspiracy so that I will have time to pursue other projects.  Thanks to Eugene for inviting me to blog with him, to the rest of the gang for putting up with me, and to readers for their frequently interesting and only occasionally uncharitable and very rarely egregious and defamatory comments.  Eugene has kindly offered to let me post from time to time but I have asked him to take down my name in the hope that it will eliminate the otherwise difficult-to-break (for me) psychological compulsion to maintain a stream or at least trickle of posts.  I leave you with some links to my recent academic work, which I had hoped to blog about but never found the time to do so.

Economic Foundations of the Law of the Sea (with Alan Sykes).  All in all, the Law of the Sea treaty seems reasonable, but conservative critics are right that the deep sea mining provisions are silly.  But don’t let the best be the enemy of the good, etc.

Against Feasibility Analysis (with Jonathan Masur).  A popular alternative to cost-benefit analysis does not withstand scrutiny.

ProCD v. Zeidenberg and Cognitive Overload in Contractual Bargaining.  Judge Easterbrook’s infamous opinion is a masterpiece of realist jurisprudence.

The Rights of Migrants: An Optimal Contract Framework (with Adam Cox).  Imagine that a country is like an employer, and a potential migrant is like a prospective employee.  Then you can exploit a great deal of economic wisdom on optimal contracting, for the purpose of understanding immigration law.  An unplowed field for aspiring scholars.

Here are some papers that I will soon post on SSRN.  If they interest you, keep an eye out for them over the next month:

What Do Federal District Judges Want?: An Analysis of Publications, Citations, and Reversals (with Steve Choi and Mitu Gulati).  Conventional (academic) wisdom holds that (1) appellate judges are influenced by ideology; (2) trial judges are not influenced by ideology; and (3) the affirmance rate of trial judges is very high.  Are these propositions consistent?  No!, with empirical evidence.

Subconstitutionalism (with Tom Ginsburg).  People talk all the time about national constitutions, including federalist structures in national constitutions, and about the constitutions of states, but rarely about how national constitutions influence the constitutions of states.  We fill this gap, using an agency model and a (strong) assumption that national constitution reduces agency costs for the state population, implying that state constitutions should be weaker than national constitutions.

Universal Exceptionalism in International Law (with Anu Bradford) examines the claim that the United States has an “exceptionalist” foreign policy, and argues that in fact all great powers (China, the EU, the Soviet Union in the past) have “exceptionalist” foreign policies—in the sense that they seek to mold international law to their interests.

Foreign Affairs Legalism: A Critique (with Daniel Abebe) criticizes modern foreign relations law scholarship for putting excessive faith in courts and legal process.

Finally, two forthcoming books.

Law and Happiness (with Cass Sunstein) collects papers from a recent conference examining the implications of happiness research for legal scholarship.

Climate Change Justice (with David Weisbach) argues for a minimalist climate treaty—one that addresses global warming but does not redistribute wealth or attempt to resolve other claims of justice.

Comments, as always, welcome!

The Book is a new online venture founded by Leon Wieseltier, the longtime editor of the literary section of the New Republic.  The New Republic has always been the top place for book reviews in my opinion—less ideologically predictable than the New York Review of Books and the London Review of Books, less eccentric than TLS, and (vastly) more sophisticated than the Times Book Review.  I hope The Book carries on this tradition.  Here is its agenda, written by Isaac Chotiner, its executive editor.  I have a review in the first “issue” (?—what is the correct word here?)—on a political scientist’s defense of Justice Kennedy.

Many of us said during the days of the Bush administration that restrictions on civil liberties motivated by the conflict with Al Qaeda would be maintained during any subsequent administration, whether Democratic or Republican, as long as the terrorist threat remained.  This prediction has been amply confirmed.  The most recent example is the implementation of an explicit profiling program for airline passengers.  The ACLU aside, there has not been much criticism of this initiative.  (Maybe because some of the most prominent critics of the Bush administration’s counterterror policies are now members of the Obama administration.)

The persistence of policies across ideologically divided administrations is good evidence that those policies are now mainstream rather than partisan and ideological.  Of course, many people will continue to disagree with them, just as many people continue to object to a standing army and a central bank; but these people are now officially on the fringes.  There will also continue to be arguments about interrogation practices and the like, but a wide range of Bush administration policies—indefinite detention without charges, trials by military commission, the use of military force against suspected terrorists in foreign countries, secrecy privileges that undermine litigation against government officials responsible for terrorism policies, profiling on the basis of nationality, and much else—are now politically entrenched.

This development seriously weakens some common arguments heard over the last years.  The major theory was that Americans support unnecessary or unjustified limitations on their liberties because of “panic,” exploited by elected officials for political gain.  If this theory is correct, then it applies to the Obama administration, which is acting just like the Bush administration—not quite as aggressively on the margin, but almost so.  But the theory was never a very good one.  If “fear” or “panic” is to be given any meaning, then it can’t be the case that Americans are in the same panic today as they were nine years ago.  Many policies have been modified, to all appearances reflecting rational consideration of their costs and benefits.  But the “fear” trope was always just a way to criticize policies without coming up with a plausible, empirically informed account of why the government was wrong to think that for any particular policy, the gains are greater than the costs.

The Al-Bihani case is another signpost on the road.  The striking dictum rejecting the view that “the war powers granted by the AUMF and other statutes are limited by the international laws of war” may not survive in the long run—this is in tension with Hamdi, as Judge Williams notes, although on the other hand the Supreme Court has hardly been consistent in requiring that international law be used to interpret statutes.  But the whole opinion, including the concurrences, is pregnant with a kind of resentment that courts are being asked to determine whether the U.S. army properly picked up an (alleged) enemy soldier on foreign territory—and one way or other, the courts are going to maintain their historical stance of deference to the political branches.  The anti-international law dictum is best interpreted as reflecting very sensible doubt that judges are in a good position to figure out how the laws of war should be applied in this quasi-war.  If the president wants to interpret them strictly, then nothing about the opinion prevents him from releasing Al-Bihani on laws-of-war grounds.  Of course, the president does not want to interpret them strictly, in yet another way advancing the legacy of the Bush administration.

(A possibility that seems to be on the table.)  Recall our friend, the AUMF:

the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Al Qaeda is the relevant organization here, and so U.S. presidents can (indefinitely?) take military action against Al Qaeda, regardless of the country in which Al Qaeda members are located.  Note that a military strike against Al Qaeda in Yemen would be an act of war against Yemen unless Yemen consented to it (and it might), even though the government of Yemen itself does not support Al Qaeda (as far as anyone can tell) and indeed has been cooperating with the United States in the “war” (or “law enforcement action” or whatever it is) against Al Qaeda.  But Yemen, because of its own internal conflicts and the weakness of its government, may not be willing to take as aggressive action as the U.S. government wants it to—just like in Pakistan, where a similar war between the United States and Al Qaeda is taking place with only the quasi-consent of the Pakistani government.

But there is a further complication.  The relevant Al Qaeda in Yemen is called “Al Qaeda in the Arabian Peninsula.”  Is Al Qaeda in the Arabian Peninsula a branch of Al Qaeda, the organization that planned and executed the 9/11 attack and is therefore covered by the AUMF?  There are apparently contacts between the two Al Qaedas, but does that make them the same organization, or just two separate organizations that have—contacts?  What if the two Al Qaedas do not cooperate in any way; suppose that leaders of Al Qaeda in the Arabian Peninsula simply borrowed the name Al Qaeda, a kind of trademark violation intended to siphon off some of the reputational capital enjoyed by the original?  If so, the authority bestowed by the AUMF vanishes—poof!

All of this is moot if the U.S. government takes the precaution of blowing up its targets in Yemen rather than taking them prisoner.  As others on this blog have noted, the courts in their wisdom apply different standards in the two cases.  If Al Qaeda in the Arabian Peninsula is not a part of Al Qaeda, the president can draw on his constitutional authority for a military attack, as Reagan, Clinton, and other presidents have.  But if the U.S. military takes anyone prisoner, and the AUMF does not apply, then the outcome is anyone’s guess.  One suspects that for this reason any prisoners will be quietly turned over to the Yemenis, who would be happy to interrogate, intern, or dispatch a common enemy.

Once you eliminate the implausible corner solutions—the TSA undertakes body cavity searches of every passenger, or security screenings are abolished—a number of consequences follow.

1.  The TSA must randomize (play a “mixed strategy,” in game-theoretic parlance).  Otherwise, terrorists can predict some of its precautions and evade them.  The same principle explains why police vary patrol routes and road blocks.  A NYT article today makes clear that the TSA is self-consciously randomizing to keep terrorists off guard.

2.  At the social optimum, the number of successful terrorist attacks will be greater than zero.  It might be argued that we have had too few successful terrorist attacks over the last few years rather than too many.  The question is whether the implicit statistical valuation of life in TSA programs is too high.  I suspect that the answer is yes, as is generally the case with airline safety.

3.  Profiling is an effective strategy when, as here, terrorists come from a small group of (relatively) easily identifiable people.  One suspects that this explains Israel’s success.  But profiling places a large portion of the cost of deterrence on a small group, which makes some people morally uneasy.

4.  Once the implausible corner-solutions are ruled out, any security policy or threshold will seem arbitrary because you have to draw the line somewhere, which means that it will be easy to point to some permitted activity that is only slightly different from what is forbidden (for example, carrying on 100 ml of liquid rather than 101 ml).

5.  As for the “security theater” claim–

a.  If ordinary people are fooled into thinking that the TSA is doing more than it is really doing, then at least some potential terrorists will be fooled as well, and so will be deterred from engaging in airplane-terrorism.

b.  Ordinary people will also fly more often, which means that one of the goals of terrorists—to terrorize people so that they will pressure their government to make concessions to terrorists—will have failed.

This piece by Mark Lynas is well worth reading.

To those who would blame Obama and rich countries in general, know this: it was China’s representative who insisted that industrialised country targets, previously agreed as an 80% cut by 2050, be taken out of the deal. “Why can’t we even mention our own targets?” demanded a furious Angela Merkel. Australia’s prime minister, Kevin Rudd, was annoyed enough to bang his microphone. Brazil’s representative too pointed out the illogicality of China’s position. Why should rich countries not announce even this unilateral cut? The Chinese delegate said no, and I watched, aghast, as Merkel threw up her hands in despair and conceded the point. Now we know why – because China bet, correctly, that Obama would get the blame for the Copenhagen accord’s lack of ambition.

China, backed at times by India, then proceeded to take out all the numbers that mattered. A 2020 peaking year in global emissions, essential to restrain temperatures to 2C, was removed and replaced by woolly language suggesting that emissions should peak “as soon as possible”. The long-term target, of global 50% cuts by 2050, was also excised. No one else, perhaps with the exceptions of India and Saudi Arabia, wanted this to happen. I am certain that had the Chinese not been in the room, we would have left Copenhagen with a deal that had environmentalists popping champagne corks popping in every corner of the world.

…Except that China, the largest emitter, would not have been part of the deal.  Lynas does not mention that China’s proposal to reduce its carbon intensity by 40-45 percent by 2020 from the 2005 level would have done nothing more than endorse its business-as-usual emissions.  You might have noticed that other countries spoke in terms of cuts in carbon emissions, not in carbon intensity.  What is the difference?  Carbon intensity means carbon emissions per dollar of GDP, so a country with a fast-growing economy can cut intensity without cutting emissions.  According to the International Energy Outlook for 2009, China’s projected carbon dioxide intensity for 2020 is 558 metric tons per million 2005 U.S. dollars of GDP.  For 2005, the figure was somewhere around 1,001 (this is actually the 2006 figure, which I have before me).  So, following its normal policies, China was already expecting to reduce carbon intensity by more than 60 percent—without taking any special mitigation measures, and while emissions per capita would climb another 10-20 percent.  In this way, China promised to do what is what going to do anyway.  Thanks China!  In addition, China refused to agree to any international monitoring, so even if its economy stops growing, and it does not meet its easy emissions target, no one will know.

So China is now the major stumbling block to a climate treaty.  Why?  The answer is surely that the Chinese government gives precedence to economic growth.  In other words–it’s acting in its self-interest ... just like all the other nations.  It’s dumb to complain that China is now the bad guy just because it doesn’t do what we want it to do.  If western and poor nations want China to act in their interest, there is only one thing they can do: pay China to reduce its emissions.

Jonathan notes that the health care bill includes certain “entrenchment” provisions, and asks, “can the current Senate bind future Senates in this way?”  If I understand the bill correctly, it creates an independent board that recommends ways to limit Medicare payments.  These recommendations go to the president, who in turn is supposed to submit them to Congress.  Congressional procedures are likewise constrained.  The Senate, for example, cannot debate the proposal for more than 30 hours; there are limits on House procedures as well.  The idea seems to be to constrain filibustering and other parliamentary maneuvers that would defeat cost-saving legislation in the future.  As Jonathan notes, the bill further provides that these constraints cannot be overturned by majority rule but require a 2/3 supermajority.

Can Congress bind itself in this way?  As it happens, I have written a paper on this topic (with Adrian Vermeule).  The short answer is “no,” or at least, no one thinks that Congress can bind itself in this way.  (For some Supreme Court dicta, see U.S. v. Winstar, 518 U.S. 839, 872 (1996)).  A Congress at time 1 can pass all the entrenchment provisions it wants, but Congress at time 2 can repeal them by majority rule, rendering the entrenchment provision nugatory ex ante.

Academics have spent a lot of time justifying the restriction on entrenchment, but, our paper argues, have failed.  Some scholars make conceptual arguments: Congress can’t bind future Congresses to supermajority rules if every Congress rules by majority.  But these conceptual arguments are clearly wrong, as Article V of the Constitution shows (and, indeed, the Senate’s own internally enforced supermajority rules).  It is certainly possible to entrench policy; the question is whether courts or other relevant agents will respect the rules.  Most scholars seem to fear that if Congress can entrench legislation, then it will resolve all questions today that might come up in the future, depriving future generations of their right to self-government.

The problem with this argument is that Congress can already bind the future in uncontroversial ways.  It borrows money, compelling the future to repay or suffer a loss of credit.  It starts wars, compelling the future to finish them.  Everything Congress does affects future generations, for good or for ill.  Imposing restrictions on its own procedures is not really distinctive.  If you think Congress should be able to do anything at all, then you are probably compelled to conclude that it ought to bind itself.  In this instance, part of the health care deal is a commitment by Congress to restrain growth in Medicare spending.  Since people don’t believe that Congress will actually control Medicare spending if normal parliamentary procedures are used, the Senate is trying to entrench this commitment.  Unfortunately, it will fail—at least, if it depends on the courts to enforce these rules.  It is possible that the rules will create a political entrenchment of some sort, but it is hard to tell.

The most tangible outcome of the climate agreement announced here Friday turned out to be cash....

But money in notable quantities should, in principle, start flowing next year....

The accord calls for the establishment of the Copenhagen Green Climate Fund to support immediate action to help curb emissions and to help communities adapt to the effects of global warming.

An initial, fast-start fund worth $10 billion annually would operate from 2010 to 2012.

For long-term finance, developed countries agreed to support a goal of jointly mobilizing $100 billion a year by 2020 to address the needs of developing countries.

So says the NYT.  It is hard to know where these figures come from.  The Copenhagen Accord itself does not give figures.  Various heads of state, including President Obama, bandied around the $100 billion figure, but Obama did not say what America’s contribution would be, and he made it clear that he expected other countries to make up the difference, which they might or might not do.

Let’s suppose this money comes through.  What is it for?  One reads the press reports on the Copenhagen meeting in vain for this information; nor do any of the official documents I have seen shed any light on this issue.  Consider the following possibilities:

1.  The money will go to the countries that experience the worst climate-related harm.

2.  The money will go to the poorest countries.

3.  The money will go to the poorest countries that experience the worst climate-related harm.

4.  The money will finance green energy infrastructure in developing countries.

Each of these possibilities draws on different ideas of justice and pragmatism.  The first rests on an idea of corrective justice—those who cause climate change should compensate those who are injured by it.  The second reflects distributive justice, but note that it has nothing to do with climate change.  Should a very poor country be deprived of resources just because its poverty can’t be traced to climate-related harms?  The third principle says yes.  The fourth principle is forward-looking and would withhold resources from very poor countries that are not developing and thus cannot use green energy infrastructure—it would in fact reward the fastest-developing countries, meaning those whose people are likely to become wealthier sooner.  It is thus in tension with principles 2 and 3.

In fact, none of these principles ought to provide the basis for distribution of the fund.  The fund should be used to pay off countries whose participation in a climate treaty is essential but have little interest in participating.  Russia is the chief example, but China is a possible example as well.  Those countries that care about climate change must compensate large emitters that don’t care or care very little.  Countries can continue to provide foreign aid to poor countries as they have done for decades: there is no reason to use a climate treaty as a device for further redistributing wealth.

The contrary view(s), that rich countries should pay money to poor countries or climate victims, has no political legs.  This position simply raises the price tag for climate mitigation, a crazy thing to do when already people are balking at paying anything at all.

This is the truth that cannot be publicly acknowledged but fortunately it does seem to be guiding the next steps of negotiations.  The top 20 or so emitters have booted out the rest of the world, unwilling to allow poor countries to continue to hold up negotiations in order to extract further rents, as they did at Copenhagen.  This coalition of the willing is the best hope for a climate treaty.

The original goal of Copenhagen was a 192-country treaty that committed all nations to reduce carbon emissions.  The much-scaled down goal that emerged in the weeks before the delegates arrived was a “political agreement” (not a treaty) that expressed a global consensus on the importance of reducing emissions.  What we finally got was a political agreement signed by a handful of countries—as far as I can tell from the press reports, only the United States, China, India, South Africa, Brazil, and a “group of European nations.”  The other 180-odd countries refused to sign the Accord, instead merely “taking note” of it in the final Copenhagen document.  The Accord did no more than reiterate that climate change is a problem and nations should do something about it.  The White House has declared victory, or success, or validation, or some such thing; if that is so, what is failure?

As I noted in a previous post, one lesson of the debacle was the impossibility of global governance understood in the conventional sense to mean that all countries have some say in the development of international law.  In a recent book, I speculated about this possible effect of the fragmentation of nations—the number of countries have approximately tripled since World War II.  More nations, I argued, imply less international law, at least, of the sort that can solve global-scale public goods problems.  Copenhagen illustrates the dilemma—you can have climate mitigation or you can have global governance; you can’t have both.

The agreement-to-agree did three things.  It established that a critical mass of developed and highly industrialized developing countries such as China agree that climate change is a significant problem, and that these countries need to reduce their emissions.  It provided that countries will have to submit to a monitoring system.  And it suggested that rich countries will have to make a payoff of some sort to poor countries.  But it did not produce agreement on particular targets or amounts, let alone a treaty.  Indeed, most of the world did not [corrected, 12/20] even formally sign onto the Copenhagen Accord, which contains these quasi-commitments.  You can read the Copenhagen Accord here.

Why the failure?  Here are some hypotheses:

1.  We are far from global democracy: the only workable agreement is one that a small number of states, fewer than twenty probably, can negotiate.  As the number of negotiators increases, the potential for holdout, bickering, and other transaction costs increases exponentially.  After much wasted time, the major emitters appear to have agreed to go forward on their own, over the next months and years.  It is fortunate that fewer than 20 countries account for nearly all carbon emissions, but this probably won’t be true farther in the future, which is an extremely serious problem.

2.  The rich countries took too seriously the demands of the poor countries.  The poor countries have always demanded money from rich countries—the “climate debt” is just the latest rationale.  But the legacy-of-imperialism and globalization-causes-poverty arguments failed to move the rich countries, and the climate debt argument won’t as well.  It is, first of all, a not very good argument, for reasons I have discussed elsewhere.  Beyond that, the rich countries know that their citizens will not countenance a climate pact that requires the transfers of tens or hundreds of billions of dollars to poor countries.  Foreign aid has never been popular; it has never been generous (most foreign aid payments are not motivated by altruism but by particular foreign policy goals).  I suspect that the rich countries offered the money to try to avoid the political cost of failure at Copenhagen, but never intended to pay it.  The poor countries understand this, which is why they refused to cooperate.  (See Ken’s post for more.)  In future, the rich countries will freeze out the poor countries in the negotiations, offering some token amount of money for technical assistance and adaptation.  When the take-it-or-leave-it-ness of the deal becomes clear, poor countries will reluctantly sign on in order to get their scraps.  This should have been anticipated; the political cost of failure at Copenhagen was the price to be paid for failing to be realistic about this problem.

3.  The United States lacked credibility.  The Senate has not passed a climate bill.  Even if a bill does pass, the world understands that the American public has little enthusiasm for a climate treaty—a huge fraction of Americans do not even believe in anthropogenic climate change.  Americans also hate foreign aid (which they stubbornly overestimate) and distrust international institutions—and a climate treaty will probably require a bunch of them.  If the United States cannot credibly promise to reduce emissions by an adequate amount, then other countries have no reason to make politically costly commitments on their own side.  President Obama’s personal commitment to climate mitigation cannot overcome this rational skepticism.

See also Ken’s recent post.