The Volokh Conspiracy

Whatever else one might say about the Trillion Dollar Coin, it would certainly set the stage for the ultimate heist movie.

Maybe an “American Buffalo” needs Mamet, but this would write itself. In my version, a disgruntled Treasury worker swallows the coin, then goes on a hunger strike, holding the economy hostage until his demands are satisfied.

Also, it better be pretty big. Otherwise all hell would break loose if someone accidentally dropped it somewhere....

“Syria is Iran’s only ally in the Arab world. It’s their route to the sea.” So said Mitt Romney at the Monday debate. The Associated Press, The Guardian, The Telegraph, New York, U.S. News,  Brad DeLong, Rachel Maddow’s Maddowblog,  Comedy Central, and The Daily Kos promptly seized the opportunity to show off their superior geographical knowledge, pointing out that Iran has a coastline. The explicit or implicit explanation was that Romney does not even know basic geography. “Romney Flubs Geography” announced the A.P. headline on the Washington Post website. Readers in search of more sophisticated coverage  might have turned to Yahoo! Answers:

Q. Why did Romney say that Syria is Iran’s “route to the sea”? ...when 1) Iraq stands between Syria and Iran, and 2) Iran already has the Persian Gulf, not to mention the Indian Sea?

A. Romney was speaking in the context of the debate topic on foreign policy and the sanctions restricting the finances and trade of Iran. Although Iran is indeed located on the seacoast of the Indian Ocean and the Persian Gulf, the international trade sanctions have restricted and impeded its ability to transport armaments and other goods through its own seaports. To defeat these trade sanctions, Iran has resorted to using its air transportation to transport goods through an air corridor in Iraqi airspace into Syria and its seaports, such as Latakia.

Fact-checkers who actually investigate the facts might have started with expert websites such as StrategyPage. A 2006 article titled Syrian Delivery System for Iranian Nukes details the extensive seaborne smuggling operations carried out by Syrian companies operating out of Syrian ports. The article concludes:

Iran was generous with its “foreign aid” because Syria provided support for terrorists Iran backed. Now Iran is keen on getting nuclear weapons. The first ones Iran will get will be large and delicate. The only feasible intercontinental delivery system will be a ship. A ship that is accustomed to moving illicit goods.

Stratfor, which is an outstanding site for the collection and analysis open source intelligence, has the following reports involving Syria/Iran sea-related collaboration: An Iranian ship at the Syrian port of Tartus (also spelled “Tartous”) picked up Syrian oil for delivery to China, to evade the economic sanctions on Syria (Mar. 30, 2012). Iran warships docked at the port of Latakia in early 2012 (Feb. 18, 2012), and in early 2011 (Feb. 22, 2011; Feb. 24, 2011). During the 2011 visit, the Iranian navy’s commander, Admiral Habibollah Sayyari, announced that Iran was ready to help Syria improve its port facilities, and to collaborate on technical projects with Syria. (Feb. 26, 2011). (All the Stratfor articles are behind a paywall.)

So in short, Syria is Iran’s route for the projection into the Mediterranean Sea (and from there, the Atlantic Ocean) of conventional naval power, and, perhaps soon, of nuclear weaponry.

Post-debate, the Washington Post‘s Glenn Kessler at least made a start towards a serious factcheck of the Romney quote. He published an updated and condensed version of a longer piece he had written last April about Romney’s repeated use of the phrase.

In the April piece, Kessler wondered what difference Syria made, since Iranian ships can enter the Mediterranean via the Suez Canal. True, but anyone with even a mild knowledge of naval affairs could explain the utility of a Mediterranean port, as a opposed to a Persian Gulf port, for ships operating in the Mediterranean. In April and in October, Kessler wrote:

We also checked with other experts, many of whom confessed to being puzzled by Romney’s comments.  [DK: Kessler should have named all the "other" experts, and should also have included the explanation of at least one of the experts who was not among the "many" were were confused.] Tehran certainly uses Syria to supply the militant groups Hezbollah and Hamas, but that has little to do with the water. The relationship with Syria could also effectively allow Iran to project its power to the Mediterranean and the border with Israel. But does that really mean, “a route to the sea”?

The last two sentences are really the buried lede of the story: Romney is raising a very important issue (Syria as the base for the projection of Iranian naval power), but Romney is not explaining himself in a manner which the less well-informed members of the public (e.g., the sources linked in the 1st paragraph of this post) can understand. If Romney were a better communicator, he would have laid out the facts in greater detail, as Ronald Reagan and Winston Churchill did in their own time, when warning their countrymen about the military dangers of aggressive totalitarian regimes. As Kessler wrote in April, “If Romney is elected president, he will quickly learn that words have consequences. Precision in language is especially important in diplomacy, and here Romney used a phrase that left people befuddled as to his intent and meaning, especially since he did not even make a distinction between the Mediterranean and Arabian seas.”

If you’re a journalist or a commentator, there’s no reason be ashamed just because a Washington Post writer reported a story much better than you did. But when you find yourself being outclassed by Yahoo! Answers, perhaps it’s time to rethink your assumptions that you’re much smarter and better informed than Mitt Romney.

In recent weeks, libertarians have been debating whether there’s any good reason for us to support Romney over Obama, or vice versa. In contrast to 2008, when many libertarians endorsed Obama, few if any are making the case for him this year. There is near-universal agreement among libertarian commentators that Obama’s presidency has done more harm than good.

But there is some debate over whether Romney is likely to be any better. Stephen Green, the “Vodkapundit,” makes the case for Romney here. Doug Mataconis argues against. As for me, I voted for McCain in 2008 because it was the only way to maintain divided government and avoid a massive increase in government spending and regulation. Sadly, most of my 2008 fears about the effects of an Obama victory have been realized.

This year, however, I think the presidential choice is a much closer call than in 2008. The primary difference is that a reelected Obama would have to deal with a Republican-controlled House and at most only a narrow Democratic majority in the Senate. That greatly limits the potential harm he might do in a second term.

In this post, I break down the tradeoff between Obama and Romney on several of the most important issues for libertarians: Government spending and regulation, the fate of Obamacare, the courts, the War on Drugs and immigration, and foreign policy. I picked these issues because they all have a massive impact on large numbers of people. Ultimately, I think that Romney deserves a slight edge. But there are many uncertainties involved. Because it’s such a close and complicated call, this post will unfortunately be much longer than I would prefer. Even so, I will have to leave consideration of Libertarian Party nominee Gary Johnson for a future post, which I will write when time allows.
Continue reading ‘A Libertarian Perspective on Romney vs. Obama’ »

In this Politico post, I expanded on my recent VC post about dogs that didn’t bark during last night’s presidential debate. It was especially unfortunate that both candidates and the moderator completely ignored the issue of judicial nominations:

[N]either of the candidates or the moderator even mentioned judicial nominations, even though this is one of the areas where a president can have his biggest impact. The next president may well appoint as many as two or three Supreme Court justices, and numerous lower court judges. Those judges will likely serve for decades after he leaves the Oval Office, wielding enormous influence over the constitutional rights of all Americans. And there are big differences between the two parties on overall judicial philosophy, and specific constitutional issues such as federalism, property rights, free speech, and executive power.

For most presidents, the judges they appoint are among their most important and longest-lasting legacies.

In a recent Slate column, John Dickerson points out that presidential elections typically focus too much on issues the president has little control over and too little on those that he has more effect on:

Nothing tests a president’s temperament like foreign affairs. Though this presidential campaign has only recently touched on the topic, the lack of focus points to another flaw in our election system. If we arranged our campaigns around what a president actually can control, we wouldn’t spend the majority of our time talking about the economy, where a president is a bit player.

Not so in foreign affairs. A president is the last word on decisions regarding military strikes, covert operations, or how to treat political prisoners. George W. Bush signed off on every prisoner that faced enhanced interrogation techniques. Barack Obama personally approves every drone strike of a high-value terrorist target. When the president serves as the country’s chief diplomat, he acts almost entirely alone.

Dickerson exaggerates a little when he suggests the president “acts almost entirely alone” on key foreign policy issues. But he certainly has much more control over them than over short-term economic trends. Yet the latter are the biggest factor in most elections. Voters also tend to ignore or underemphasize other issues that the president has a great deal of control over: issues such as judicial nominations and appointments to federal regulatory agencies.

Why are voters myopic in this way? Because, thanks to widespread political ignorance, most voters have difficulty telling the difference between issues that the president can affect and those he can’t. That’s why studies show that voters routinely reward and punish politicians for events they have little or no control over, including trends in the world economy, shark attacks and droughts, and even victories by the local sports team.

Voters would not do this if they were well-informed about politics and public policy. But for the vast majority, it’s actually rational to be ignorant, and to do a poor job of evaluating the political information they do know.

UPDATE: For those who want to argue that an Obama victory this year would prove that voters have given up overemphasizing short-term economic trends, I would point out that his performance in the polls is roughly on par with the predictions of economic models of presidential contests based on data from past elections.

McCulloch v. Maryland had a very good day at the Supreme Court yesterday, with NFIB relying on and applying McCulloch‘s rules for when an enactment violates the Necessary and Proper Clause. What happened after the McCulloch decision also shows the next steps in battle over the individual mandate, as I suggest in an essay this morning for National Review Online.

In refusing to hold the Second Bank of the United States unconstitutional, the McCulloch Court gave Congress broad latitude in Congress’s own evaluation of whether the Bank was “necessary” in a constitutional sense. Relying on and quoting McCulloch, President Andrew Jackson made his own judgment of constitutional necessity when he vetoed the recharter of the Bank in 1832. After a titanic political struggle, the Bank was gone, and a new term created by Jackson, “equal protection,” had become part of what the American People were coming to believe the Constitution was supposed to mean.

President Jackson dealt the Bank a fatal blow by withdrawing federal deposits from the Bank, and moving them to state banks. President Romney can follow Jackson’s lead on his first day in office, instructing the Acting Secretary of Health and Human Services to use the waiver powers in the ACA statute to issue waivers to everyone for the individual mandate. Because the individual mandate is (supposedly) a tax, it can then be repealed through the budget reconciliation process, which cannot be filibustered.

I predict that the individual mandate will never mandate anyone. Yet the mandate will be long remembered as one of the most consequential laws enacted by a Congress. The result of the “bank battle” was that even though a central bank was judicially permissible, central banking was politically toxic for the rest of the century. The “mandate battle” may have the same effect in deterring any future thoughts of congressionally-imposed mandates. (Putting aside the obvious exception for mandates that have a solid basis in the constitutional text, such as jury service.)

The enactment of the mandate has also significantly increased the probability that the next Supreme Court appointments will be made by a President and confirmed by a Senate which denounces the mandate as unconstitutional, and that the new Justices will be the kind who are inclined to vigorously enforce the many strong constitutional limits on congressional over-reaching which are articulated in NFIB v. Sebelius.

I would have preferred that the mandate had met its end yesterday morning, but the fact that the mandate will have to be finished off by the People in November and their elected officials in January may lead to even better long-term results for advocates of a constitutionally limited federal government.

In a 47-minute podcast from iVoices.org, I provide the history from Operation Wide Receiver in 2006-07, up through the contempt of Congress vote this week.

As noted by Jonathan Adler, below, President Obama today asserted Executive Privilege for Attorney General Eric Holder’s refusal to comply with a document subpoena from the U.S. House Oversight Committee. The letter is here. The Committee will vote later today on a resolution to hold Holder in contempt of Congress. The Committee Report in support of the contempt resolution is here. A fact sheet on the contempt resolution is here.

Fast & Furious was a program implemented by the Arizona office of the Bureau of Alcohol, Tobacco, Firearms & Explosives, in Sept. 2009 through January 2011. In F&F, BATFE lied to and coerced Arizona gun stores into selling firearms to obvious “straw purchasers”–persons who were illegally buying firearms on behalf of someone who cannot legally buy firearms in the U.S. The “someone else” was Mexican gun traffickers, with most of the guns going to the Sinaloa cartel. Over 2,000 firearms were thus put into criminal hands. In this article for the NRA magazine America’s 1st Freedom,  I provide a timeline of events through October 2011. F&F was a larger and even more destructive reprise of Operation Wide Receiver, which in 2007 put about 500 guns into criminal hands, before BATFE’s management in DC began asking questions that immediately led to Wide Receiver being shut down.

On Feb. 4, 2011, the Department of Justice sent a letter to the House Oversight Committee which falsely claimed that no “gunwalking” (allowing guns to pass into criminal hands, without the guns being kept under constant surveillance) ever took place in Fast & Furious. In December 2011, the Department of Justice admitted that the letter was false, and formally withdrew it. The author of the letter, Ronald Weich, has left DOJ to become Dean of the University of Baltimore Law School.

Whistleblowers from BATFE started coming forward in December 2010, after F&F guns were used in the murder of Border Patrol Agent Brian Terry. There has been extensive retaliation against the whistleblowers.

The particular issues in the contempt vote, and therefore in President Obama’s assertion of Executive Privilege involve:

1. Retaliation against the whistleblowers.

2. Post-Feb. 4 DOJ documents about the false Feb. 4 letter, communications with the White House about F&F after Feb. 4, and other DOJ documents involving the (alleged) continuing cover-up after Feb. 4.

While Fast & Furious was going on, personnel at the National Security Council in the White House received information about it, although the full extent of what they were told is not yet clear. The contempt resolution is based on a document subpoena which was issued in October 2011.

According to Attorney General Holder, the DOJ has 140,000 documents related to Fast & Furious. Fewer than 8,000 have been provided to Congress pursuant to subpoenas. The contempt vote has been narrowed to 1,300 documents. In refusing to comply with the House subpoenas, the DOJ has refused to create a privilege log–which would identify withheld documents, and the legal reason for their being withheld.

So here are my questions for the commenters: Is President’s assertion of executive privilege legally persuasive? Do the citations provided in the executive privilege letter provide an accurate description of current law on executive privilege? Todd Gaziano, of the Heritage Foundation, argues that Executive Privilege is not properly invoked here.

UPDATE: I will be discussing today’s developments on WDTK radio, Detroit, at 4 p.m. Mountain Time. You can listen live here.

President Obama today fired his opening salvo in an unprecedented attack on the Constitution of the United States. Regarding the impending Supreme Court ruling on the health control law, the President said, “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

His factual claims are false. His principle is a direct assault on the Constitution’s creation of an independent judicial branch as a check on constitutional violations by the other two branches.

It is certainly not “unprecedented” for the Court to overturn a law passed by “a democratically elected Congress.” The Court has done so 165 times, as of 2010. (See p. 201 of this Congressional Research Service report.)

President Obama can call legislation enacted by a vote of 219 to 212 a “strong” majority if he wishes. But there is nothing in the Constitution suggesting that a bill which garners the votes of 50.3% of the House of Representatives has such a “strong” majority that it therefore becomes exempt from judicial review. To the contrary, almost all of the 165 federal statutes which the Court has ruled unconstitutional had much larger majorities, most of them attracted votes from both Democrats and Republicans, and some of them were enacted nearly unanimously.

That the Supreme Court would declare as unconstitutional congressional “laws” which illegally violated the Constitution was one of the benefits of the Constitution, which the Constitution’s advocates used to help convince the People to ratify the Constitution. In Federalist 78, Alexander Hamilton explained why unconstitutional actions of Congress are not real laws, and why the judiciary has a duty to say so:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. . . .

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

Because Hamilton was the foremost “big government” advocate of his time, it is especially notable that he was a leading advocate for judicial review of whether any part of the federal government had exceeded its delegated powers.

Well before Marbury v. Madison, the Supreme Court recognized that the People had given the Court the inescapable duty of reviewing the constitutionality of statutes which came before the Court. The Court fulfilled this duty in cases such as Hylton v. U.S. (1796) (Is congressional tax on carriages a direct tax, and therefore illegal because it is not apportioned according to state population?); and Calder v. Bull (1798) (Is Connecticut change in inheritance laws an ex post facto law?). The Court found that the particular statutes in question did not violate the Constitution. (The ex post facto clause applies only to criminal laws; the carriage tax was an indirect tax, not a direct tax.) However, the Court’s authority to judge the statutes’ constitutionality was not disputed.

It would not be unfair to charge President Obama with hypocrisy given his strong complaints when the Court did not strike down the federal ban on partial birth abortions, and given his approval of the Supreme Court decision (Boumediene v. Bush) striking down a congressional statute restricting habeas corpus rights of Guantanamo detainees. (For the record, I think that the federal abortion ban should have been declared void as because it was not within Congress’s interstate commerce power, and that Boumediene was probably decided correctly, although I have not studied the issue sufficiently to have a solid opinion.) The federal ban on abortion, and the federal restriction on habeas corpus were each passed with more than a “strong” 50.3% majority of a democratically elected Congress.

As a politician complaining that a Supreme Court which should strike down laws he doesn’t like, while simultaneously asserting that a judicial decision against a law he does like is improperly “activist,” President Obama is no more hypocritical than many other Presidents. But in asserting that the actions of a “strong” majority of Congress are unreviewable, President Obama’s word are truly unprecedented. Certainly no President in the last 150 years has claimed asserted that a “strong” majority of Congress can exempt a statute from judicial review. President Lincoln’s First Inaugural criticized the Dred Scott majority for using a case between two private litigants for its over-reaching into a major national question, but Lincoln affirmed that the Court can, and should, provide a binding resolution to disputes between the parties before the Court. And in 2012, the government of the United States is one of the parties before the Court. (And the government is before the Court in part because the government filed a petition for a writ of certiorari to ask the Court to use its discretion to decide the case.)

Alone among the Presidents, Thomas Jefferson appears as a strong opponent of judicial review per se. Notably, he did not propose that Congress be the final judge of its own powers, especially when Congress intruded on matters which the Constitution had reserved to the States. Rather, Jefferson argued that in such a dispute the matter should be resolved by a Convention of the States, and the States would be make the final decision. Given that 28 States have already appeared as parties in court arguing that the individual mandate is unconstitutional, we can make a good guess about what a Convention would decide about the constitutionality of the health control law.

President Obama, however, wants Obamacare to be reviewable by no-one: not by the Supreme Court, not by the States.  You can find professors and partisans who have argued for such lawlessness, but for a President to do so is unprecedented.

The People gave Congress the enumerated power “To regulate Commerce . . . among the several States.” According to the Obama administration, this delegation of power also includes the power to compel commerce. Opponents contend that the power to regulate commerce does not include the far greater power to compel commerce, and that the individual mandate is therefore an ultra vires act by a deputy (Congress) in violation of the grant of power from the principal (the People). Seventy-two percent of the public, including a majority of Democrats, agrees that the mandate is unconstitutional. Few acts of Congress have ever had such sustained opposition of a supermajority of the American public.

President Obama today has considerably raised the stakes in Sebelius v. Florida. At issue now is not just the issue of whether Congress can commandeer the People and compel them to purchase the products of a particular oligopoly. At issue is whether the Court will bow to a President who denies they very legitimacy of judicial review of congressional statutes–or at least those that statutes which garnered the “strong” majority of 219 out of 435 Representatives.

I promised to offer today some of the “general lessons” from my new book, Constitutional Cliffhangers. I will divide them into two posts that excerpt and paraphrase the final chapter of the book. This one will deal with the way that law and politics interact when constitutional cliffhangers play out.

For the cliffhangers that would play out entirely in court (presidential prosecutions and self-pardons), one would hope that judges would base their decisions on law, not politics. When Clinton claimed he was immune from Paula Jones’s civil suit, all nine justices disagreed, including the four liberals. Similarly, when President Nixon refused to turn over the Watergate tapes, the justices — many of whom Nixon had appointed — were unanimous in ordering him to.

But the starting point for most cliffhangers is that the law is unclear. When the law is in equipoise but the politics are screamingly unbalanced, the court’s decision will be inextricably linked with its political context. Here, the example is not Clinton or Nixon, but Bush v. Gore.

The Bush v. Gore litigation was, on its face, all about the complicated legal issues; no lawyers said in court, “My client should win because he belongs to your favorite political party, your honor.” But it was evident that if Bush won the case, he would win the presidency. That political ramification overwhelmed the legal issues. Few believe that all nine justices would have voted the same way if the parties had been reversed. When politics infuse the courts like that, the moral authority of the judicial system necessarily suffers. There is an added incentive, then, to prevent constitutional cliffhangers if we think that they would play out in court in such a politicized manner.

Several of my cliffhangers also implicate the political-question doctrine, through which courts leave decisions to the political branches. Alas, the political-question doctrine is not overly clear. Moreover, the doctrine seems to have been weakened lately as federal courts have grown more assertive about inserting themselves into conflicts like these. Compare the disputed 1876 presidential election, in which Congress’s ad hoc resolution carried the day with nary a peep from the Supreme Court, to the disputed 2000 presidential election, in which the Supreme Court’s ad hoc resolution carried the day with barely a peep from Congress.

For most of our cliffhangers, letting the courts get involved would be perceived as a good thing. In many instances, the courts can provide faster and more decisive action than Congress. The Court is, justifiably or not, currently exalted as the nation’s ultimate authority over the Constitution. Moreover, some cliffhangers involve Congress as one of the combatants, and some arise because of congressional carelessness or ineptness. For cliffhangers like those, the courts have much less incentive, and much less basis, to give Congress the last word in resolving them.

Some constitutional cliffhangers surely would play out in Congress, though, and the presence of politics there seems less controversial. Congress is full of politicians — politics clearly “belong” there. To return to Bush v. Gore, if a dispute is going to be resolved by a party-line vote, isn’t it better to have that vote in Congress than in the Supreme Court? Even a seemingly objective issue like presidential disability will be infused with politics, as both sides carefully weigh the political ramifications of their choices and ponder who might deserve the benefit of the doubt.

The Constitution assigns lots of tasks to Congress, from the mundane (passing laws, confirming presidential nominees) to the exceptional (impeachment, presidential disability disputes, winner-less presidential elections). The Constitution’s Framers opted for flexibility, painstakingly creating a structure through which these matters — often matters of great constitutional import — can be settled by ordinary political actors being ordinary and political. This system works well and would work even better if we gave it more of a chance.

But if matters are assigned to Congress because it is representative and accountable, this presents a problem when Congress falls short on either score. An imperfect Congress cannot resolve constitutional cliffhangers with the same legitimacy as a “better” Congress. And there are plenty of imperfections in Congress’s representativeness and accountability. We have corruption, our questionable campaign-finance system, gerrymandered House districts, the disproportionateness that is the Senate, the continued toleration of filibusters, sheer inefficiency, and so on.

There are too many opportunities for Congress to get things wrong. When it comes to situations like deciding which of two contenders is the rightful acting president, there is a dangerous possibility that Congress would thwart the will of the people rather than promote it. In ordinary times, the people can reassert their control in an orderly manner every two years when they vote in congressional elections. But in the middle of a struggle over control of the White House, waiting for the next election would be insufficient and courts seem like the better venue if the Constitution allows it.

Finally, there are presidential politics. In each chapter, the more popular the president (or would-be president) is, the more likely he or she is to emerge victorious, or to not get in trouble in the first place. It’s worth considering two other facets here: the president’s commander-in-chief power, and his populist power to mobilize the public.

In my Tuesday and Wednesday posts, when two people claimed the presidency, it mattered whose side the military took. This is troubling. Our norm of civilian control of the military is threatened if the military starts choosing presidents. On the flip side, though, civilian control could paralyze the military if there were two people claiming to be commander in chief, with two putative secretaries of defense. It would be intolerable for the military to choose sides, but also for it not to choose sides. Perhaps worst of all is a third possibility: the military could be divided and choose both sides. There is no good answer here, just more incentive to prevent the cliffhangers.

Also potentially decisive is the relationship between the president and the public. In yesterday’s post, for instance, the president could not even think about evading term limits unless he had very strong popular support. If that support translated into an electoral victory in November, it would confer a unique legitimacy on him. It is unclear how well suited “populist constitutional law” is for interpreting narrow procedural provisions, but Congress and the courts would resist the people at their peril.

Less comforting is the possible role of the people “out of doors.” Citizen-mobs who take to the streets can be decisive, whether because they galvanize opinion, frighten opponents, or provoke a reaction from the state. We are in the midst of a relatively quiet period in American history, mob-wise, but this potential is never far from the surface, and angry assemblages have played an important part in American constitutional history.

The more credible the courts and Congress are, the longer the mobs would hold off, and the more likely a formal decision would be to quiet things down. Conversely, if Congress and the courts are delegitimized, public demonstrations might actually be the most legitimate way to resolve the conflict. Looking back into our history, and thinking about possible futures, we should not dismiss out of hand the potential contributions of an American public that is mobilized (the etymological source of the word “mob”) and exercising its First Amendment right to assemble.

On the other hand, nobody is in a better position to whip the public into a frenzy — to inspire mobs to form, and to move them to action all over the country — than the president. The problem is that in many constitutional cliffhangers, nobody will have a better incentive to do so than the president. In calmer times, the political cost of being a shameless demagogue is high enough to keep these pressures contained. But when a cliffhanger occurs, that balance could change and those pressures could explode.

As with the military, to the extent that the role of mobs is troubling to us, it provides yet another incentive to fix and avoid these cliffhangers. Fixing and avoiding cliffhangers will be the subject of my next, and final, post.

I have had a lot of fun this week blogging about my new book, Constitutional Cliffhangers. I’d like to thank Eugene again for inviting me, and to the readers and commenters, especially for their kind words. This week has been even better than my last appearance here, when Eugene unveiled Kalt’s Law of Presidential Facial Hair to the world.

This post is devoted to answering some of the more challenging comments my threads got — or more precisely, ones to which the answer is something other than “I address that at length in the book, actually.” There were about thirty where I wanted to just paraphrase long passages from the book (and I do it one time below).

arch1 asked what I meant when I referred to “fixing” presidential constitutional cliffhangers. It’s important to distinguish first between cliffhangers in which the danger is a bad result, and cliffhangers in which the danger is uncertainty.

The latter are much more perilous. The most harrowing scenarios are ones where two people are claiming control of the presidency, as in my posts on Wednesday (on the succession law) and Thursday (on presidential disability). In those cases, a “fix” would be adding certainty and clarity. In the case of the succession law, that means passing a new statute. For the disability procedure, presidents and their legal staffs need to take some simple, precautionary steps.

There’s more difficulty fixing cliffhangers in which the problem is a bad result. Take Chapter 1, on prosecuting sitting presidents. There would be some uncertainty, but the courts could resolve it quickly enough. The bigger problem would be that the presidency might be derailed by a single, unaccountable prosecutor — or, if you take the other side, the problem would be that the president would potentially get away with a crime. A fix is harder here, because it would require consensus on which outcome would be the bad one. It’s hard enough to get Congress to act when the public agrees on something, let alone when there is no consensus at all.

Fixes are even harder when the only way to achieve them is by amending the Constitution. That’s the case in Chapters 2 and 5, on self-pardons and late impeachments. Uncertainty would be resolved fairly quickly. If people were upset at the result — that the president successfully pardoned himself (or couldn’t), or that an ex-president was impeached (or couldn’t be) — they would need to amend the Constitution to change that result, but amendments are pretty unlikely. I argue in the book that, for these cliffhangers, we’re best off just sitting back, doing nothing, and hoping for the best.

Don C and Malvolio commented, with regard to the Wednesday post on the succession struggle, that the Secret Service would follow the succession law and escort the secretary of state from the White House. The Secret Service might be receptive to a court order voiding the succession law, but until and unless that happened, these commenters made a strong case that the Speaker would have the guns on her side.

I think that their points are well taken. There would be limits to the Secret Service’s loyalty to the Succession Act of 1947, though. Secret Service agents and their superiors are human beings, after all. In the hypothetical, the president — and presumably her Secret Service detail — has just been blown to smithereens. The Speaker was complicit in preserving the vacancy in the vice presidency, and fueled the murderous rhetoric that led to the assassination. Indeed, the assassin specified that the purpose of the bomb was to install the Speaker of the House as president. Couple that with the strong constitutional arguments, and a preliminary injunction or two, and who knows what would happen?

For the most part, I am content to defer to my lengthier discussions of answers in the book, but I did want to respond to Brett Bellmore’s comment about Thursday’s third-term scenario. He wrote:

Come on, now, you might not want to “get into” the 12th amendment, but that doesn’t make it unclear.
Granted, with enough bad faith, you can ‘interpret’ anything to mean anything, but a two term President running for VP takes stratospheric levels of bad faith.
Hm, come to think of it, that doesn’t actually rule it out, in today’s Washington...

Of course, I do “get into” it in the book. I’m not afraid of the Twelfth Amendment, folks, I’m just not interested in making my blog posts even longer than they are, so I necessarily have to leave out a lot. But I’ll allow this comment (and this one from B.D.) to goad me into getting into it more here.

The Twelfth Amendment says that “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.” The question here is what “eligible” means.

Early drafts of the Twenty-Second Amendment talked about two-termers being “eligible to the office,” a phrasing that would have avoided any confusion, but the final version speaks instead of being “elected to the office.” The question is whether that makes two-termers “constitutionally ineligible” to be president — and thus ineligible to be a vice president under the Twelfth Amendment.

If you think that the Twenty-Second Amendment bars two-termers from any service as president, then there’s nothing to talk about. To you, two-termers are completely ineligible to be president, and so completely ineligible to be vice president either. But if you think that the Twenty-Second Amendment allows two-termers to serve as president through succession, things are not as clear cut.

Some people argue that electability and eligibility are synonymous. This would mean that when the Twenty-Second Amendment makes two-termers presidentially unelectable, it also makes them “ineligible” to be president, and thus ineligible to be vice president, under the Twelfth Amendment.

Others say that eligibility is broader, with electability as only one of its parts: because the Twenty-Second Amendment stops short of making two-termers totally ineligible to serve as president, the Twelfth Amendment does not restrict them in any way from becoming vice president either.

The most subtle interpretation is that, by precluding their election, the Twenty-Second Amendment makes two-termers partially ineligible to be president. The Twelfth Amendment defines vice-presidential eligibility as identical to presidential eligibility. Now that the Twenty-Fifth Amendment provides for vice-presidential vacancies to be filled by appointment rather than election, the vice-presidential door is open, partially, for two-termers under this interpretation.

Brett and B.D., I hope that’s a good-enough-faith effort at showing the range of potential Twelfth Amendment arguments for you.

Finally, I wanted to respond to the many commenters who said that they’d like to buy my book, but balked at the price. I wish there was something I could do about that. I tried. Academic publishing is a tricky business, though. Print runs are small and fixed costs are high. More to the point, mass-market appeal is tough to gauge. I’m sure that I’m not the only author who thinks that the publisher underestimated the mass appeal of his own case, but I’m equally sure that most of us are wrong. All I can say is that Constitutional Cliffhangers is worth every penny :)

The last chapter that I will preview from my new book, Constitutional Cliffhangers, is Chapter 6. It deals with a potential loophole in the Twenty-Second Amendment’s term limits for presidents. It’s also the only chapter that cites a commenter from the Volokh Conspiracy.

The term-limit loophole has been noted and discussed a fair amount, dating back to the first president to be constrained by the Twenty-Second Amendment (Eisenhower). There have been robust discussions in newspapers, law-review articles, and blogs. Smart people on both sides have gotten surprisingly vehement about the question.

No president has attempted to exploit the loophole, and President Clinton spoke against it. Still, in the long term, the fates of term-limit provisions around the world suggest that we should not be too complacent over the long term.

Here is the chapter’s opening:

President Frederick is three years into his second term. He remains so popular that some pundits have floated the idea of repealing the Twenty-Second Amendment and letting him run for a third term. Frederick laughs off such talk, and a national opinion poll shows that only 12 percent of voters support repeal. Still, Frederick casts a large shadow; on the eve of primary season, his Democrats have no clear front-runner for the nomination to replace him.

Then disaster strikes: a treacherous terrorist attack kills tens of thousands of Americans. The country rallies behind President Frederick as he leads a strong offensive against the terrorists and their sponsors. His approval rating shoots into the nineties. While the country is badly rattled by the attack, people feel safer with Frederick in charge.

Frederick feels pretty good being in charge too. Now, when the Twenty-Second Amendment comes up, he sounds increasingly coy. Support for repeal rises to almost 50 percent in the polls. But Republicans — and several prominent Democrats — argue against amending the Constitution in the heat of the moment, so the congressional and state supermajorities needed for an amendment are well out of reach.

At this point, a startling idea gains traction among Democrats: President Frederick can run for vice president. Many people would find Frederick’s mere presence reassuring. Others envision a figurehead president who would leave VP Frederick in charge or perhaps even resign and let Frederick become president again. This last maneuver would be constitutional, they say, because the Twenty-Second Amendment only says that no one “shall be elected to the office of the President more than twice,” and Frederick would not be “elected” president. The amendment says nothing about a two-term president “succeeding” to the presidency, or “serving” as president. Buoyed by Frederick’s stratospheric popularity and the atmosphere of crisis, the plan steadily gains support, and Frederick’s anointed surrogate, Representative Stevens, sweeps the Democratic presidential primaries.

The Republicans object forcefully. As one senator puts it on a Sunday morning talk show, “We’re all grateful to President Frederick for his leadership during these difficult months, but everybody knows we have a two-term limit. We shouldn’t let the Constitution be a casualty of this war.” Frederick is officially nominated for vice president at the Democratic convention, and the litigation floodgates open.

Later on in the chapter, we get this exchange on a cable news show:

Professor Scott: Look, I can’t tell you why the drafters of the Twenty-Second Amendment limited it this way. But they did. When they wrote the first draft of the amendment, they said two-termers couldn’t “hold the office.” But then, they changed it from “hold the office” to “be elected.” You see? They initially banned what President Frederick is trying to do, but then they changed the language until it didn’t say that anymore. They said “elected” only, they said it on purpose, and that’s that.

Professor McCulloch: The Twenty-Second Amendment was written to keep two-termers out. The Twelfth Amendment says two-termers can’t run for vice president either. Frederick is a two-termer. It’s not that complicated, and people know it. Professor Scott likes talking about the “plain meaning of the text” here, but that just means he wants to ignore the context and ignore the clear purpose of the amendment and ignore the way people have understood this language for generations. If the Twenty-Second Amendment is this easy to avoid, then it means nothing, and judges don’t like to interpret the Constitution as an exercise in futility. I think Professor Scott and I agree on one thing, though: if the courts don’t prevent this, the people will still get to decide. Lots of voters who would otherwise vote for President Frederick are going to vote against him, because they recognize how inappropriate this is.

I don’t want to get into the legal arguments about the Twelfth and Twenty-Second Amendments here, because so many people have written so much about them already, including on this blog. Briefly, the question for the Twenty-Second Amendment is whether it bars two-termers only from being elected again (as the text says) or from serving anymore at all (as the spirit and the popular understanding of the amendment suggest). For the Twelfth Amendment, the issue is whether “eligible” (in the phrase “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States”) means eligible to be elected or eligible to serve at all.

Instead of wading into these questions here (I don’t want to just reproduce my whole book, after all), I want to focus on the cautionary tale this represents about constitutional drafting.

An earlier draft of the Twenty-Second Amendment would have avoided this problem, just as Professor McCulloch suggests in the last block quote above. That language was changed in a bold move to “simplify” the language down to 13 words, thus opening the loophole. This was foolish. First of all, the language quickly got re-complicated anyway back up to 121 words (though not in a way that noticed, let alone closed, the loophole). Second, it is more important that technical “nuts and bolts” constitutional language be precise than that it be elegant.

The other side of the argument is that the risks are too low to worry about. And it is truly hard to imagine any president trying to pull this trick; the president would need to have enough support to win even after subtracting out all the would-be supporters who (1) think he is constitutionally ineligible to serve or (2) think that term limits should be observed even if they are not technically required. As Dean Acheson put it back in the Eisenhower days, a two-term president running for vice president would be “more unlikely than unconstitutional.”

But low risk is no reason to let our guards down. What is gained by having a more elegantly phrased amendment that leaves even the slightest potential loophole open? Whatever you think of the possibility of this cliffhanger occurring, it’s hard to argue that we wouldn’t be better off with an amendment that was a few words longer but covered all the bases.

I have some ideas about ways to improve the constitutional drafting process, which I will discuss tomorrow. For now, the point is that we can and should do a better job when dealing with issues like these. For every expert adamant that two-termers cannot serve again (my favorite line from one professor, responding to his opponent: “The contention is so preposterous, and so obviously wrong, that one wonders how a nationally renowned law professor at one of the top law schools in the nation could make such a mistake. . . . [He] quite obviously knows little about the Constitution.”), there is an expert adamant that they can. While shoddy drafting makes it easier for people like me to have their fun writing about hypothetical craziness, it would be better for everyone to keep doubt and uncertainty about presidential power at a minimum

With all due respect to Dean Acheson (and to the commenters here at VC who will say that this chapter is stupid because it simply could never happen), I will just close with the words I use to end Chapter 6: “Constitutional disputes do not arise in a vacuum, and our democracy has had its weak moments. It would be foolish to assume that the United States will never have a president who is more popular than the Constitution — or, more to the point, more popular than one disputable interpretation of it.”

The next chapter of Constitutional Cliffhangers I’d like to present is Chapter 3, on the presidential disability provisions in the Twenty-Fifth Amendment. This is an unusual candidate for a cliffhanger for two reasons. First, one side of the constitutional debate seems to me to be clearly wrong, with no chance of prevailing in court. Second, the “repair” here is rather easier than in other chapters, requiring no legislation.

Here’s the scenario. See how many Caine Mutiny references/analogies you can spot:

Frances Philips is halfway through her second term as president. Her management style, which was always “hands off,” has become downright lax. She skips meetings, neglects decisions that need to be made, and shows little interest in being president. Some members of her cabinet and staff worry that she is clinically depressed, but — swayed by the increased power that comes with having a figurehead for a boss — none of them does anything about it.

Then President Philips starts alternating her periods of utter inertness with bursts of aggressive and arbitrary micromanagement. At a cabinet meeting, she rants for ten minutes about the use of blue pens instead of black ones. Next, without explanation, she announces that she is killing a carefully developed policy initiative in which she had previously taken no interest.

Several cabinet secretaries become convinced that the president is unable to perform her job. They start to discuss Section 4 of the Twenty-Fifth Amendment, which allows the vice president and a majority of the cabinet to declare the president “unable to discharge the powers and duties of [her] office,” and transfer power to the vice president. Crucially, though, Vice President Merrick opposes the effort. Although he worries that President Philips’s mental condition is deteriorating, he is reluctant to lead what could be perceived as a coup.

Things come to a head when war unexpectedly breaks out in the Middle East. After hearing the initial reports, President Philips paces in the Oval Office, muttering to herself but issuing no orders and taking no action. After several excruciating hours pass like this, Vice President Merrick has had enough, and he gathers the cabinet to file a Section 4 declaration. He is joined by a solid majority: eleven out of fifteen cabinet members.

President Philips is blindsided, but her chief of staff Tom Cooper (who Merrick erroneously thought would support the Section 4 declaration) is not. When Philips asks what her options are, Cooper reads to her from Section 4: if the president sends a counter-declaration to Congress that “no inability exists,” she can “resume the powers and duties of [her] office.” Cooper notes, however, that Section 4 allows the vice president and cabinet to reassert the president’s unfitness within four days, sending the matter to Congress for a final decision, and giving power to the vice president in the meantime.

With renewed focus, Philips executes Cooper’s plan. First, she signs a letter declaring herself fit and transmits it to Congress. Next, she summons the cabinet and addresses the eleven mutinous members: “If you don’t think I can discharge the powers and duties of my office, watch this. You’re fired.” Finally, she replaces them, naming eleven of her most trusted subordinates as acting cabinet secretaries.

In response, Vice President Merrick rallies the old cabinet, and he and the original eleven challengers sign a second declaration of Philips’s disability. Merrick claims that Philips has misread Section 4: Philips never retook power, her firings are invalid, the second disability declaration is valid, Merrick is the acting president, and Congress must now step in. Unfortunately, as advised by Chief of Staff Cooper, Philips refuses to back down. She says that she is in control, with the unanimous support of the “legitimate” cabinet, and that Congress has no basis to act.

The nation is in crisis. There are two presidents and two cabinets. The situation in the Middle East is spinning out of control, and nobody knows for sure who the rightful commander in chief, secretary of state, and secretary of defense are. Congress assembles while dueling sheaves of legal pleadings and memoranda flood the federal courts.

President Phillips and her chief of staff are clearly in the wrong here. The problem is that Section 4 is written in a way that allows them — in the heat of this tense situation — to misread it. In the chapter, I talk more about how their misreading could happen, including instances of smart people making the same mistake.

Part of the problem is that the main source of clarity is the legislative history: a statement in response to one of those smart people making the same mistake. Later in the chapter, it leads to this exchange:

White House Counsel Keith: Madame President, the legislative history of Section 4 is clear as a bell. You do not get to come back until this goes through Congress, unless the cabinet went four days without re-challenging you. But the cabinet did re-challenge you. I’m sorry, Ma’am, but Vice President Merrick is in charge and you cannot fire anybody.

President Philips: [Expletive] the legislative [expletive] history, [expletive] Merrick, and [expletive] you, you [expletive] traitor [expletive]!

The drafters of the Amendment operated in an era in which legislative history was assumed almost to be part of the text. There is a striking (unrelated) passage in the legislative history in which Senator Bayh states that the legislative intent is that the amendment be construed as if a passage that had appeared in an earlier draft was still there! But mistakes are most likely to be made in precisely this sort of situation, in which tensions and stakes are extraordinarily high, and there are powerful incentives pushing the president and some of her staff in this direction.

Consider the immediate aftermath of the shooting of President Reagan in 1981. The administration was unprepared to discuss transferring power, and “the men gathered in the Situation Room [did not] know what action they were authorized to take or expected to take.” Away from the White House (and to no effect), lawyers in the Justice Department studied the legislative history of the Twenty-Fifth Amendment as President Reagan was in surgery.

Largely as a result of that episode, presidents have much better contingency planning. Still, nothing is guaranteed. This cliffhanger is a good example of the importance of careful, clear constitutional drafting. Presidential disability and succession rules are no places for the slightest uncertainty. They should be certain and swift — there should never be doubt about who the president is at any given moment.

This cliffhanger exposes flaws in the drafting process, because earlier drafts of the amendment were written in a way that would have prevented the Phillips scenario from ever occurring. The book offers some thoughts about improving the amendment-drafting process to prevent these sorts of things from happening. (The Twenty-Fifth Amendment is also the only one I am aware of with a typo in it. Ten points to the first commenter to find it.)

In the meantime, as I said at the outset, the fix here is relatively easy. Presidents and their legal staff need to make it clear — right now, when there is no crisis — that they understand that the vice president is in charge during the four-day waiting period.

As mentioned above, contingency plans aren’t always followed. Nevertheless, if the proper interpretation of Section 4 gets engrained regularly enough, the chances of someone getting in wrong in a crisis will fade away.

In my first post I said that my “cliffhangers” range from the merely interesting all the way up to full-blown constitutional crises. My favorite chapter in Constitutional Cliffhangers, Chapter 4, definitely qualifies as a crisis. Here is the opening:

The United States is deeply divided over the war. Everyone agreed that we needed to fight back when Ruritania attacked our bases, but after two years of intensive combat, things are not going well. Addressing the nation, President Joanna Lewis announces her intention to seek a negotiated settlement. The half of the country that agrees with her breathes a sigh of relief.

The other half boils with rage. Responding to the president, Speaker of the House Peg Wilton says, “We are losing this war — not because our cause is hopeless, but because we have a cowardly commander in chief. We should never surrender to fascist aggression.” “Coward” is a mild epithet compared to what other hawks call President Lewis.

Complicating matters is that a few weeks ago, the vice president suffered a fatal heart attack. President Lewis nominated a candidate to fill the vacancy, but the hawks in Congress have stalled the vote. They are motivated by their distaste for the nominee’s unsurprisingly dovish position on the war, but everyone notices that while the vice presidency is vacant, Speaker Wilton is next in line for the presidency (followed by the president pro tempore of the Senate, and then members of the cabinet, starting with the secretary of state).

As President Lewis arrives at a public event one morning, an assassin detonates a huge bomb, killing the president and dozens of others. In a homemade video produced before the assassination, the bomber decries “the coward Lewis” and announces his intention to kill Lewis so that the stalwart Wilton will become president and continue the war. Within two hours of the assassination, the video has saturated television and the Internet.

The assassin seemingly gets his wish. Wilton condemns the assassination in the most strident terms, obviously, but she takes an oath of office that morning as acting president. Her political position is tenuous. Supporters of the martyred President Lewis blame Speaker Wilton for fueling the rhetoric that led to Lewis’s assassination, and for her role in stalling to keep the vice presidency vacant. In other words, they feel as though the country has just suffered a coup d’état. They latch onto a legal argument that, just hours earlier, had been an academic one: that it is unconstitutional for the succession law to include members of Congress. Wilton’s opponents argue — with the support of several prominent legal experts — that the dovish secretary of state, John Allen, is the legitimate acting president.

Secretary Allen decides to contest Wilton’s claim to the presidency. He too takes an oath of office as acting president and, without using force, he assumes physical control of the White House. “The struggle over our war policy has been ugly, but it’s a political struggle,” he says in a national address from the Oval Office. “In America, we don’t settle political questions by mass murder.”

It has only been ten hours since the assassination — a shocking and surreal day. No violence has broken out yet, but it feels like only a matter of time before it does. No one is in the mood to compromise, and control of the government and the military hangs in the balance as Allen and Wilton vie for control.

This is my favorite chapter for many reasons. The first is that I can’t resist the potential drama of the story (a novel is in the works). The second (and my main focus in this post) is that it highlights the interaction between law and politics.

The legal issue here is complicated, but to summarize briefly: The Constitution’s Succession Clause empowers Congress only to place “officers” in the line of succession, and the Speaker of the House and the President Pro Tem of the Senate (whom the statute places second and third in line, respectively) are arguably not “officers” as the Constitution uses the term. The secretary of state clearly is an officer. (I am guessing the commenters might get into the details more...)

The role of politics here is key. Even though the weight of scholarly opinion is (by my measurement) on the secretary of state’s side here, I concede that the Speaker could assume office without controversy in most cases. The general public would accept the result. Those that did not would either lack standing to challenge the succession law, or (like the secretary of state, who would have standing) would lack the political and personal will to do so.

But in a situation like the one in my opening scenario — in which the Speaker is of a different party, had a hand in maintaining the vacancy in the vice presidency, and arguably incited the vacancy in the presidency — the secretary of state might make a play for control and the country could be in real trouble.

We cannot be sure that the winner of this struggle would be the side with the stronger constitutional arguments. We can be sure that the struggle itself would shake the foundations of our government.

This odds of this happening might be long, but the stakes are incalculable. On the other side, the benefits of the status quo are minimal. The justification usually offered for Speaker succession (that the Speaker is a top elected official, representing the whole country, while cabinet members are mere appointees) doesn’t amount to much when compared to the potential peril it represents.

Even though this makes it a good candidate for reform from a cost-benefit standpoint, politics again make it hard to see this getting fixed. For various reasons, Congress is better at addressing problems that have already occurred than it is at preventing future ones. Congress is also driven by interests and the “cliffhanger-reform” movement is politically weak, while the “preserve the prestige of the Speaker” movement has a natural constituency at the Capitol.

Law, politics, and the Speaker and secretary of state trying to strangle each other. All of this and more in Constitutional Cliffhangers.

Hello Volokh Conspiracy readers! I’d like to thank Eugene for this opportunity to guest blog here about my new book, Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies.

Today I’ll have one post with a brief introduction, and another with an excerpt/discussion from one chapter. I’ll discuss a couple more chapters tomorrow and Thursday, and conclude with some general lessons on Friday. I look forward to your comments, and I’ll try to post some responses to them too.

My book is about what I call constitutional cliffhangers, all of them of the presidential variety. I define these cliffhangers as “scenarios in which the fate of the president or presidency is in doubt as politicians, courts, and the people argue over the proper interpretation of the Constitution.” They range from the merely interesting all the way up to full-blown constitutional crises.

In the middle six chapters, I sketch out hypothetical situations in which (1) a president is criminally prosecuted; (2) a president pardons himself; (3) cabinet members try to oust an allegedly disabled president, who in turn tries to oust them; (4) the secretary of state and the Speaker of the House fight for control of the presidency after the president and vice president are killed; (5) an ex-president is impeached; and (6) a two-term president attempts to stay in power.

In each case there are legal arguments on both sides, complicated by intense politics. The politics are often decisive in cases like these, so it might seem pointless to spend too much time debating the legal niceties. I’ll address that important issue on Friday.

In the remainder of this introductory post, I’ll address a common question that topics like mine evoke: “Why worry about a bunch of crazy stuff that will never happen?”

The short answer is that crazy stuff like this happens quite often. The scenarios in my book were chosen because they haven’t happened yet, but some of them have come close. More to the point, other examples abound in American history: The Jefferson-Burr tie in the Election of 1800 is probably the first; the Harrison-Tyler “acting president” question from 1841 is probably the most significant; and the Paula Jones case is probably the most recent. The Constitution has too many wrinkles and slick spots in it for us to avoid tripping or slipping on them once in a while.

It’s worthwhile to try to identify problems before they happen, and to discuss and possibly fix them. Indeed, some of them are too obvious to ignore, yet we still manage to do so until it’s too late. Consider this passage from my introductory chapter about the lessons we can learn from our most contentious presidential election:

The whole election turned on a few hundred disputed votes in Florida. There had been ultra-close presidential elections before, and there had been ambiguous results in individual states before; it was only a matter of time before both happened at the same time. Unfortunately, no steps had been taken to prevent it.

The problem was that there were no rules for resolving a dispute like this. The quintessential American mixture of politics and litigation filled the void. The Republicans fought to defend their initial lead; the Democrats fought to open things back up and recount the votes. The Republicans controlled key posts in the state government; the Democrats won key victories in Florida state court. The Republicans took their case to Washington, D.C., where Republican-appointed Supreme Court justices declared that there was no time for recounts, handing the election to the Republicans. And so, in 1877, Rutherford B. Hayes became our nineteenth president.

You might recall some similar things that happened in 2000. The underlying quandary — an electoral system in which it is easy for the margin of error to greatly exceed the margin of victory — was no secret before 1876, let alone in 2000. And yet it dangled out there unsolved, waiting to snag both elections. For the most part, it dangles still.

That’s the spirit of Constitutional Cliffhangers.

I’ll be posting again later today with a look at my favorite cliffhanger (Chapter 4 in the book), a succession crisis in which the secretary of state and the Speaker of the House wrestle, figuratively, for control of the White House.