Ten things that aren't changing

Conspirator Orin Kerr has this memo reminding political commentators that, as a result of the election, parties must now brief opposite sides. Republicans are now against executive power and Democrats for it (cf. SF: How the left will learn to stop worrying and love executive power (4/7/08)), Republicans are now to emphasize the importance of careful scrutiny of a President's nominees while Democrats are to emphasize the importance of an expeditious up-or-down vote, and so forth. One of Orin's commenters adds: "What's great about the Internet is that there is now a record of what people have said"; quite so, and in that spirit, I offer this post: ten things I've said whose political valence has now changed but that aren't changing just because Barack Obama is President.

1. The executive branch is still unitary. The Constitution vests the executive power in President Obama; "this does not mean some of the executive power," as Justice Scalia reminded us in Morrison, "but all of the executive power."

2. The fundamentals of the economy are still strong. Nevertheless, we just posted a quarter of contraction, and are likely to see another one before things improve. Think about that for a moment, though! There is surely irony in the fact that after five or so quarters in which the media insisted we were in a recession even though we weren't, in President Obama's first few months the media will insist that we aren't in a recession even though we technically will be.

3. The line of succession should still be amended to exclude legislative officers, even if that places Secretary of State John Kerry third in line to the Presidency.

4. We still don't need to know everything the executive branch is doing, and President Obama should still have the right to cut loose people inherited from the previous administration. I still oppose civil service laws that make that harder to accomplish.

5. Similarly, Geoff Stone is still more right than Richard Posner about constitutional rights in times of war, but Posner is still more right than Stone about civil liberties generally in such times. President Obama can and should continue the data mining program and other surveillance initiatives directed at terrorist activities.

6. Federal preemption still isn't a dastardly plot, although I agree with Prof. Rick Hills - one of the most interesting liberal legal scholars active in the academy today, I think - that the present court is too quick to find state common law remedies preempted.

7. Don't Ask Don't Tell is still statutory law. Don't whine that President Obama hasn't unilaterally abolished it.

8. The filibuster is still constitutional. If the Democrats attempt to eliminate it with something akin to the nuclear option, I will oppose them, just as I opposed the GOP's attempt to do so a few years back.

9. As a follow-up on eight, although the Constitution doesn't prohibit the filibuster or permit the nuclear option, the Senate rules could still be changed by legitimate means, but still shouldn't be. (The dems might well do so.) While I said in January that the novelty of filibustering judicial nominees was a strong case against doing it, and that it might even be an argument for conforming the rules to the traditional practice, I opined a year ago that:

it would be unwise as a normative matter to remove the filibuster for nominees, because the distinction between legislative and executive business is not so clear-cut that I would be confident in its surviving a partisan fracas. Just because we can rationally distinguish between the filibuster of executive business vs. the filibuster of legislative business doesn't mean that such a distinction will be made (or will survive) when it becomes inexpedient to the majority party.

Whatever my opinions on the filibuster might be as an initial matter, it has been a part of our tradition since at least the 1830s and arguably since 1806, see Martin Gold & Dimple Gupta, The Constitutional Option to Change Senate Rules and Procedures, 28 Harv. J. of L. & P.P. 205 215-6 (2004), and thus seems quite obviously entitled to protection as an exoconstitutional structure. It should come as no surprise to anyone that one thing that I'm not changing my mind on just because Barack Obama has become President is my skepticism of change.

And lastly, 10. George F. Will is still right about the daffy "President's Question Time" idea.

Post facto:
One thing that shouldn't change (3/31/2011)
An eleventh thing that didn't change, and one thing that did (Dec. 22, 2011)