We're told law professors are saying we're in a "constitutional crisis," but at what point would they switch to the term "constitutional moment."

One could avoid either term. Even though both terms include the word "constitutional," neither term appears in the Constitution, and I cannot imagine how a real case could hinge on the perception that we are in a "constitutional crisis" or a "constitutional moment." 

But I'm thinking about these 2 terms together because I just listened to today's NYT "Daily" podcast: "A Constitutional Crisis." The phrase was used 23 times, as if we could be convinced by repetition. But convinced of what? 

Michael Barbaro: The phrase du jour, Adam, right now, in Washington, is "Constitutional Crisis." And we come to you as our resident scholar of the law and the courts to understand what A Constitutional Crisis actually is and how you know when you are in the middle of one....

Adam Liptak: I've been talking to a lot of law professors and what emerges from those conversations is that there's no fixed, agreed-upon definition of A Constitutional Crisis. It has characteristics, notably, when one of the three branches tries to get out of its lane, asserts too much power. It often involves a president flouting statutes, flouting the constitution, flouting judicial orders. And it can be a single instance, but it's more typically cumulative. But it's not a binary thing, it's not a switch.

Liptak's been "talking to a lot of law professors," but apparently not to Alan Dershowitz. I highly recommend his "Trump versus the courts: who will win? My legal analysis" (from February 10th):

Alan Dershowitz: I want to be very clear the New York Times had a front page story major story.... All the law professors in the world the entire academy,  all the law professors think there's a horrible constitutional crisis going on. Of course, they interviewed 3 or 4 left-wing anti-Trump law professors. They didn't introduce anybody who would have a neutral view of the Constitution, and they didn't give their readers an honest assessment of the issue. There is no constitutional crisis! Take it from me! I've been study studying the Constitution for close to 70 years now. I know a thing about the Constitution. The United States has a system of checks and balances. That system is designed to prevent constitutional crisis. The Democrats are crying wolf. Schumer screaming out there like a like a mad person about about the Constitutional crisis. People talking about going to the streets and war. No no no no.....

The NYT article he was talking about, published February 10th, was written by Adam Liptak — "Trump’s Actions Have Created a Constitutional Crisis, Scholars Say."

"Criminal prosecution is the wrong idea. Use the 14th Amendment on Trump."

Write Bruce Ackerman and Gerard Magliocca (in The Washington Post).

Legislation already proposed by Democratic Reps. Debbie Wasserman Schultz (Fla.) and Jamie B. Raskin (Md.) would grant special jurisdiction to a three-judge federal court in the District of Columbia to determine, within three months, whether Trump’s involvement in the assault on Capitol Hill amounted to an “insurrection.” The panel’s decision would receive automatic Supreme Court review.

This is urgent business. If Congress does not move quickly to enact the Schultz-Raskin proposal, the issue of Trump’s political future will drag into 2024, when the next election will rev into high gear and courts will be inclined to let the voters decide.

Yes, hurry up! Wouldn't want to leave it to the voters to decide. Democracy is at stake.

You know, I wish Trump would go away. But these efforts to subvert the democratic process using the courts and the 14th amendment are not the way to make it happen. I know there's a tremendous fear that if allowed to run for President, Trump might win. But if you give into that fear and look for some way other than fighting him politically, you are blatantly displaying your mistrust of democracy.

Cool eyes hallucinating at the constitutional lawprofs of war.

"Obama attacked from the left" is a tag of mine, and I'm applying it to this NYT op-ed by Yale conlawprof Bruce Ackerman: "Obama’s Betrayal of the Constitution." Dateline — ominously! — Berlin. Excerpt:

President Obama’s declaration of war against the terrorist group known as the Islamic State in Iraq and Syria marks a decisive break in the American constitutional tradition. Nothing attempted by his predecessor, George W. Bush, remotely compares in imperial hubris....

That's a bold beginning, but it's actually weakened by seeming to open up a discussion of the need for a formal declaration of war, something that the United States hasn't had since WWII. But Ackerman proceeds to discuss the "authorization for the use of military force," which Congress gave to President Bush 3 days after the 9/11 attacks. That vote was practically unanimous.

Let me take a little detour of my own here. The "no" vote in 2001 was from Barbara Lee, who was called a "traitor" and a "communist" at the time, but whose words are strikingly prescient today.

Obama's Libya adventure does not fit the War Powers Resolution... and can only be supported by the most extreme view of presidential power.

Lawprof Bruce Ackerman explains:

After the Vietnam War, Congress passed the War Powers Resolution, which granted the president the power to act unilaterally for 60 days in response to a "national emergency created by attack upon the United States, its territories or possessions, or its armed forces." The law gave the chief executive an additional 30 days to disengage if he failed to gain congressional assent during the interim.  

But... these provisions have little to do with the constitutionality of the Libyan intervention, since Libya did not attack our "armed forces." The president failed to mention this fundamental point in giving Congress notice of his decision on Monday, in compliance with another provision of the resolution. Without an armed "attack," there is no compelling reason for the president to cut Congress out of a crucial decision on war and peace....

The War Powers Resolution doesn't authorize a single day of Libyan bombing. But it does provide an escape hatch, stating that it is not "intended to alter the constitutional authority of the Congress or of the President." So it's open for Obama to assert that his power as commander in chief allows him to wage war without Congress, despite the Constitution's insistence to the contrary....

Many modern presidents have made such claims, and Harry Truman acted upon this assertion in Korea. But it's surprising to find Obama on the verge of ratifying such precedents. He was elected in reaction to the unilateralist assertions of John Yoo and other apologists for George W. Bush-era illegalities. Yet he is now moving onto ground that even Bush did not occupy....

The War Powers Resolution cedes power to the President in the very place where the argument for independent presidential power is strong: When there is a national security emergency. If you don't fit the War Powers Resolution, because it's not an emergency, the argument for independent power is at its weakest.

Here's the part of my diavlog with Bob Wright where we talk about this issue. Note how, challenged, Bob comes up with a generic neocon argument about how more democracy in the world is good for national security. I press him about how there needs to be an emergency to justify not including Congress in the decisionmaking. (I've let this clip go on a bit, so it's a little long, but I purport to tell you the whole story of constitutional law, so it's actually super-concise.)

Bruce Ackerman defends "Democracy Dollars" — the proposal to empower everyone to donate $50 to political campaigns.

Remember this post of mine about a WSJ op-ed by Bruce Ackerman and Congressman David Wu proposing a $50 tax credit for people to donate to presidential candidates? It was presented as a kind of antidote to the Citizens United case, which recognized a First Amendment freedom for corporations to engage in political speech.

I had some questions about the proposal because, for one thing, it's about enabling people to channel money to candidates, which is different from doing your own speaking. I worried about those immediate electronic refunds:

Ah! How the cash could flow! Just push buttons on line. Is that too easy? Do you worry about corruption? Does it unduly favor the kind of people who use computers and credit cards... or is that really everybody now?

Professor Ackerman emailed me to say that he had answers to my questions in his book  "Democracy Dollars" (co-written with Ian Ayres and not with Wu), and I asked for some electronic text, which he sent. From pages 69-70:

In our brave new world, Americans simply go to their neighborhood ATM and vote their Patriot dollars under three ground rules.  

Vote. Presumably in the lingo of the book, the $50 donation is equated to a vote. You get a donation to channel to someone, which is sort of like voting.

The first gives each voter five days to change her mind. This not only encourages sober second thought but makes a black market tough to organize. To see why, suppose that a fraudster offers Citizen X $20 in private money if she allows him to accompany her to the ATM and watch her transfer 50 Patriots to his favorite candidate. X accepts the offer, executes the transaction, takes the $20 — and then returns the next day to countermand the order!

That assumes Citizen X cares about politics... and isn't afraid of the fraudster. I think a lot of people would gladly pocket the $20 and not give a damn about where the $30 went. It's not like they have a way to get their hands on the $30. They have to give away the $50, so there will be endless schemes to get hold of those millions of $50s.

Not a good deal for the fraudster, especially if we add two rules. Patriotic contributions should be anonymous — making it impossible for the fraudster to contact his favored beneficiary to see whether the transaction sticks.  

Citizen X would need to believe that anonymity is secure.

And the ATM will accept only Patriot accounts linked to standard electronic cards. This prevents the fraudster from demanding possession of X's ATM card for the five-day cooling off period, thereby making it impossible for her to change her mind. While X might give away a free-floating Patriot card, she will refuse to surrender a standard credit card to somebody who is not, by definition, very trustworthy. If she ever gets her American Express back, she may find not only that her Patriot account is empty but that the fraudster has used it to finance his trip to Las Vegas!

Does everyone have a credit card? Do we really want a government program bound up in the operations of private credit card companies? Will the credit card company get a cut of all these transactions? Or are we going to end up with a government credit card company?

As a final anticorruption safeguard, all Patriot accounts will expire after six years. Renewal will be easy — a citizen must simply vote once during the period, and swipe his card once again through the electronic reader available at his polling place. Regular renewal prunes the files of dead and incapacitated cardholders-cutting out another source of fraud. To be sure, it also eliminates people who fail to vote once in six years. But this seems entirely acceptable. Nonvoters can regain their patriotic status simply by reregistering.

I also asked whether "incumbents [would] snap up the money and make it even harder for newcomers to get started." And Professor Ackerman pointed to this, at pages 78-79:

Fundamental fairness may be compromised if one candidate conducts an expensive primary battle while the other doesn't. The problem is at its maximum when a sitting president is running for reelection. The man (or woman!) in the White House comes to the table with such great advantages that he may avoid a significant challenge in the primary. This will allow him to stockpile the pool of Patriots from members of his own party while challengers raise and spend large sums for the privilege of running against him in November. By the time the out-party selects its candidate, the successful nominee may confront a serious problem raising patriotic donations from the party faithful. Many will have spent their wad during the primaries, leaving the challenger to face an incumbent sitting on a large patriotic stockpile. It is tough enough ousting a sitting president without giving him this further advantage.

The problem is of constitutional dimension. After Franklin Roosevelt's four-term presidency, the American people said "never again," and enacted a constitutional amendment checking the power of incumbent presidents by limiting them to two terms in office. Our approach to Patriot is guided by this decision. In the case of incumbents running for reelection, we divide the 25 Patriot dollars allocated to each presidential account into two subaccounts-allocating $10, say, to the primaries and $15 to the general election. This will permit the out-party to wage a fierce struggle over the nomination without compromising its capacity to run an effective race in the fall.

The system is infinitely tweakable. I note that it will be tweaked by incumbents and the party in power. Why would they "permit the out-party" to do anything they don't want? Once the system is in place and all that money is at stake, the game will be played by ambitious politicians, not by neutral wise men (and wise women!) trying to perfect democracy.

I also asked about what was going on in the states that had programs like this. Here, Professor Ackerman quoted a law review article by Thomas Cmar, "Toward a Small Donor Democracy: The Past and Future of Incentive Programs for Small Political Contributions," 32 Fordham Urban Law Journal. 443, 462-75 (2005):

Oregon has the highest participation rate in the country for a political contribution incentive program, and in large measure this is due to the state providing the credit for contributions to PACs as well as candidates and parties. Many PACs solicit credit-eligible contributions aggressively, promoting the credit as a central aspect of their fundraising appeal. The result is that in recent electoral cycles, a substantial portion of contributions on which a tax credit was claimed went to PACs rather than to parties or candidates. ... Data from Oregon suggests, however, that Oregon's higher participation rate is driven by the mobilization efforts of contribution recipients."

PACmania. Comments? Personally, I'm terrified of all that money flowing around.

A "market solution" to the perceived problem that is the Supreme Court's corporate speech case.

Bruce Ackerman and David Wu say Congress should create a tax credit for money contributed to political candidates — $50 per person in "presidential years." (Don't presidential candidates have to collect their contributions before the year that has the election in it? But that's a minor quibble. Let's concentrate on the main idea: a tax credit for campaign contributions.)

If each citizen also had a chance to contribute democracy dollars, their donations would overwhelm the sums that corporations are likely to spend under the recent Supreme Court decision.

Under our initiative, candidates will find new rewards by appealing to mainstream interests. If they effectively express the concerns of ordinary people, citizens could respond by sending millions of democracy dollars in their direction. Despite the new financial power granted to corporations, Americans would gain a renewed sense that they could make a difference in politics.

The Supreme Court opinion did not free corporations to make more contributions to candidates. It recognized a constitutional right to speak for themselves. Ackerman and Wu's solution is designed to increase the flow of money to candidates, which would presumably boost the candidates' power to speak and counter this newly increased speech by corporations.

Ackerman and Wu are right that their solution — unlike attempts to rein in corporate speech — doesn't threaten free speech rights, but it's probably not true — as they claim — that it "allows ordinary Americans to compete effectively with corporations." It creates a huge flow of money to politicians so that the politicians can compete with corporations.

So Ackerman and Wu have a "more speech" solution — the classic preferred solution under First Amendment theory — but the "more speech" is going to come from the candidates. The speakers that will be yammering in our ears night and day will be corporate entities and politicians, not ordinary people, though Ackerman and Wu would like us to assume that the candidates that get the money will be those that "effectively express the concerns of ordinary people." So it's kind of like speech, except that somebody else is speaking for you.

Good idea? They're already doing it in "Oregon and other states." I'd like to hear more about how the state-level experiment has fared. Do the incumbents snap up the money and make it even harder for newcomers to get started?

Ackerman and Wu also put forward a new idea: setting up an electronic system that immediately refunds the amount you contribute onto your credit card. That way you wouldn't need to wait until you file your income tax return to get the money back. Ah! How the cash could flow! Just push buttons on line. Is that too easy? Do you worry about corruption? Does it unduly favor the kind of people who use computers and credit cards... or is that really everybody now?

Lawprof Bruce Ackerman says we should require Senate approval of senior White House staff positions.

"The challenge is to make it difficult for future presidents to appoint less-qualified officials -- such as Alberto Gonzales or Harriet Miers -- without serious outside review of their credentials. That, after all, is the aim of our system of checks and balances."

He'd like to see the reform set to begin in 2017, when, we can be sure, Obama will be gone, replaced by no one now knows who.