Our dubious Constitution (continued)

Barksdale, Yvette 7barksda at jmls.edu
Fri Mar 17 14:29:03 PST 2006

Hi Sandy: 

1) Re:  Firing incompetent managers - one distinction re  all of the
examples that you cite is that they are at will appointments, with no
expectation of tenure beyond performance - I think a better analogy
might be other political offices where people serve for a term - say
Mayor, Governor, etc. The same arguments would apply there, they could
be boobs as well, sending the state down the road destruction (although
of course the stakes are not as high as with the Prez) . And the costs
for the state would be high. But the general preference is for
stability, particularly since, at the end of the term, they are out
anyway, unless reelected.    And, there are other checks and balances to
moderate the damage that they can do. 
Ditto with the Prez. There are other checks and balances to mitigate the
damage, if only people would use them. And, if there isn't the popular
will to use the checks and balances that are available, then there
likely isn't the popular will to impeach the person anyway. For example,
re the war in Iraq example, - well Congress could certainly if it wanted
order a halt to that. But they don't. Again- not enough  popular will,
at least not yet. 

I'm not saying impeachment for incompetence should not possibility.
Maybe, as a last resort.  My point is simply that there are other checks
on the competency of the exercise of Presidential power, short of

As to whether it matters who the President is - again, I never said that
the President often has extraordinary influence - but he/she  does not
have that influence just as a consequence of the legal powers of the
President. The influence comes from the status of "leader" and the
ability of the President to get others to follow. If people decide not
to follow, then I think significant brakes can be placed on the damage
that an incompetent President can do.  

Again, there has to be the popular will to do so. And if that occurs,
there is  also the damage that comes from NOT having a strong President
who can really direct things properly. 

Of course, what is the likelihood that you would get one  of those, if
the original person were impeached?  The next person coming in would
have a hard time getting those powers back, unless he/she was someone
instantly respected by all. (Which makes it less likely he or she would
have agreed to be  Vice -President, it seems to me - smile) 


Professor Yvette M. Barksdale
The John Marshall Law School
315 S. Plymouth Ct. 
Chicago, IL 60604
(312) 427-2737 (phone)
(312) 427-9974 (fax)

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sanford Levinson
Sent: Friday, March 17, 2006 3:49 PM
To: Sanford Levinson; Bob Sheridan
Cc: DavidEBernstein at aol.com; CONLAWPROF at lists.ucla.edu;
Mark.Scarberry at pepperdine.edu
Subject: RE: Our dubious Constitution (continued)

One more analogy:   Would we expect a "Commander-in-Chief" to maintain
in office manifestly incompetent generals and secretaries of defense
(who, for example, fire generals who dissent from idiotically optimsitic
best-case scenarios for fighting a war)?  Isn't this a rhetorical
question?  Even David Brooks, who supported the war and is, from my
perspective, generally a lackey for the Administration, wrote a sharply
critical column last weeked based on a new book that reveals exactly how
incompetent Rumsfeld and Tommy Franks were almost literally from the
very beginning)?  If anyone on this list had or has a loved one in Iraq,
how generous are you a Commander in Chief who has refused to hold anyone
beyond the peons accountable for incompetence, venality, and outright
criminality?  And if one expects a commander-in-chief to be more like
Lincoln and fire generals who aren't getting the job done, then why
shouldn't we be similarly willing to fire a commander-in-chief whose
stunning ignorance and arrogance have been responsible for the needless
killing (even if one supports the war in the abstract) many Americans
and many more Iraqis?  

I think it is valuable to be reminded by Yvette that the president may
have less effective power than many think--see Richard Neustadt's
classic "Presidential Power"--but, frankly, I literally cannot
comprehend what appears to be her dismissal of that power with regard to
the ability to put lives at risk in military ventures that are run from
the White House.  If one takes her arguments fully seriously, it is hard
for me to understand why anyone would care about a presidential
election, since it seemingly doesn't really matter in any serious way
who is president?  Do I misunderstand her argument?

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