Balkinization  

Tuesday, July 12, 2011

McConnell and the Separation of Parties, Not Powers

Joey Fishkin

Following up on Sandy’s post, McConnell’s trial balloon today was, I believe, several degrees more cynical than Sandy suggests. Far from handing the President the power to actually cut spending unilaterally, McConnell’s proposal amounts to a delegation to the President of the power to raise the debt ceiling without cutting spending at all. (The President must propose, and be on the hook politically for, some large cuts, but Congress need not enact them.)

The McConnell proposal would trade policy leverage for political leverage. Instead of a big policy victory—the massive cuts to domestic programs including Medicare that the Republicans were very likely to win as the price of increasing the debt ceiling—McConnell aims for a different kind of victory: forcing President Obama to “own” the increase in the debt limit, not one time but three times, between now and November 2012. This victory provides a new and cynical twist on the logic of what Daryl Levinson and Rick Pildes call “the separation of parties, not powers.”


Raising the debt ceiling is unpopular. The American public is apparently not very informed about the potential consequences of defaulting on our obligations, and is disinclined to support more borrowing. Republicans, who one can assume are better informed about those potential consequences, therefore have a classic political dilemma of a type familiar from game theory: they need the debt ceiling raised, but they do not want to be the ones who voted to raise it. For Republicans, the best thing would be for Democrats and President Obama to act on their own to raise the debt ceiling, thereby staving off the negative consequences of default, and allowing Republicans to campaign for the next year and a half against the “out of control spending” of the other party.

But there’s one problem. Republicans control a House of Congress. This is inconvenient. The debt ceiling will not be raised without some House Republicans voting to raise it. And that is where McConnell’s proposal ingeniously pulls a rabbit out of a hat. McConnell’s proposal makes it the case that increasing the debt ceiling requires only a one third minority, in either house, instead of a majority. How? Because under McConnell’s proposed mechanism, the President moves to increase the debt ceiling, Congress responds with a “resolution of disapproval,” the President (presumably) vetoes that resolution, and then, unless the resolution passes again with a two-thirds supermajority in both houses, the debt ceiling increase goes into effect. Thus, House Republicans are all free to campaign against increasing the debt ceiling, speak out against increasing the debt ceiling, and vote for a “resolution of disapproval” that would in fact block the increase in the debt ceiling… safe in the knowledge that, in fact, there will be an increase in the debt ceiling.

McConnell’s proposal simulates (on this one issue) a more parliamentary form of government. Unlike in the American system, in which both parties have some responsibility to govern, particularly during periods of divided government, McConnell would unilaterally cede congressional power to the executive so that the Republicans can gain the freedom of a parliamentary opposition party: they can simply oppose, without having to govern.

And that is why I can’t help but think of Levinson and Pildes’ article, which explores the tensions that arise out of the fact that we live under a legal regime of separation of powers, overlaid on a political regime in which the real separation is of parties. Usually, one major implication of this gap is that legislatures are more inclined to constrain executive power when government is divided, and more inclined to cede power to an executive of the same party. McConnell’s proposal today provides a different, and more cynical, twist. With power, unfortunately, comes responsibility. When there are unpopular things that must be done, it can be inconvenient to have a legislative majority. Ceding power to an executive of the opposite party can thus be a smart political strategy for legislators who wish to avoid taking responsibility for doing what needs to be done.

Comments:

I don't really see how Congress can require the President to propose spending cuts. What do they intend to do if he doesn't?
 

Political leverage is what matters to McConnell. As to the House Republicans, some do care about constitutional checks and balances. Boehner doesn't really seem like one of them. He's the one they picked as a leader. Telling.

Honestly, I don't agree with the Republicans on a lot of things, but fine, they won the House. If they aren't going to actually make some hard choices, what is the point of putting them there?
 

Joe:

The GOP House made its hard choices with the Ryan Budget knowing the Dems would demagogue it.

What McConnell tried to achieve is to force our President to actually offer his own detailed plan to back up his platitudes.

Its pretty pathetic that our President and Senate refuse to offer something as simple as a budget nevertheless actual reform. Perhaps they fear the American people's reaction.
 

Its time for a change of strategy.

The GOP House should pass a clean five year debt ceiling bill with the purpose of forcing a balanced budget, allowing $300 billion for the remainder of FY 2010, $1.2 trillion for FY2011, $900 billion for FY2012, $600 billion for FY 2013 and $300 billion for FY 2014 and nothing thereafter. Forget attaching specific cuts onto the bill.

Then tell the Dems the House is moving onto working on a new budget to fit under the new debt ceiling and welcome the Dem Senate and President to do the same.
 

"Raising the debt ceiling is unpopular. The American public is apparently not very informed about the potential consequences of defaulting on our obligations,"

The two statements, while possibly both accurate, have no particular connection, because not raising the debt ceiling does not equal defaulting on our obligations. The contrary claim is simply part of a partisan PR push to excuse the President usurping legislative power as a response to his party losing control of the legislature.

Repeat after me: "Debt servicing does not exceed 100% of federal revenues. Debt servicing does not exceed 100% of federal revenues. Debt servicing does not exceed 100% of federal revenues..."

Just repeat that every time you start to by hypnotized by the recent 14th amendment excuse for Presidential usurpations of power.
 

With all his professed budgetary skills, it must feel quite mundane for our yodeler to rev up his DUI chops to defend an alleged drunk. Alas, our yodeler merely plays "Little Sir Echo" to the GOP obstructionists. If our yodeler still plans on a 9/11/11 publication date for his work of "friction" that started on 1/20/09, he perhaps has alternate chapter plans for the current debt ceiling issue - or might that be a planned sequel?
 

The loneliness of the long distance yodeler.
 

This comment has been removed by the author.
 

I messed up the dates for my plan. Here are the corrected ones...

The GOP House should pass a clean five year debt ceiling bill with the purpose of forcing a balanced budget, allowing $300 billion for the remainder of FY 2011, $1.2 trillion for FY2012, $900 billion for FY2013, $600 billion for FY 2014 and $300 billion for FY 2015 and nothing thereafter. Forget attaching specific cuts onto the bill.
 

Brett doesn't seem to get that the federal government has "obligations" other than servicing the debt. Most people understand Social Security checks, Medicare reimbursements, payments to government contractors, and the like to be "obligations." The notion that the full faith and credit of the US Government can be preserved merely by paying off bonds as they come due is as absurd as the suggestion that a corporation which fails to pay its employees and vendors will suffer no diminution of its ability to attract investment capital so long as it continues to pay shareholders their dividend.

Bart doesn't understand that the specific spending cuts he and his Tea Party cohorts favor are drastically unpopular and are not going to be "constrained" into existence through some super-clever parliamentary maneuver. People like getting those Social Security checks and aren't likely to agree that it's fine if the checks don't go out because the government has failed to live within its Republican-dictated means.

The House Republicans, of course, remain free to pass as bare-bones a budget as they like, provided they can justify the specific cuts they propose to the electorate. The Democrats have demonstrated that if the Republican plan is to turn Medicare into a voucher system, they have no reservations about saying the Republicans want to turn Medicare into a voucher system no matter how many times the Republicans call it "MediScare" and decry the truth as demagoguery.

So if the Republicans think the public supports their platform of cuts, they should go for it. They just won't be able to hide behind the idea that dollars are magically being cut in the abstract without any specific programs being curtailed.
 

Steve M said...

Brett doesn't seem to get that the federal government has "obligations" other than servicing the debt. Most people understand Social Security checks, Medicare reimbursements, payments to government contractors, and the like to be "obligations." The notion that the full faith and credit of the US Government can be preserved merely by paying off bonds as they come due is as absurd as the suggestion that a corporation which fails to pay its employees and vendors will suffer no diminution of its ability to attract investment capital so long as it continues to pay shareholders their dividend.

After paying interest on the debt, the next priority under contract law is paying contractors. These are the only two items likely to affect the US credit rating.

Bart doesn't understand that the specific spending cuts he and his Tea Party cohorts favor are drastically unpopular.

I have more faith in the American people than you do.

We cannot continue to borrow without destroying SS and Medicare along with the rest of the government. This is no longer an option.

The Ryan Plan maintains the status quo for those who are 55 and above, subsidizes younger low income recipients and marginally reduces benefits over time for middle class and wealthy recipients.

If you honestly explain to younger future recipients that they have a choice to either:

1) Retire a couple years later and accept a slightly lower CPI increase under SS and pay more for what will essentially be Medigap insurance OR

2) Raise taxes on their kids and grandkids to pay for more benefits

I strongly suspect that a majority of those below 55 will agree to option 1 or something like it rather than harming their kids.

Of course, this requires a rational discussion of alternatives which the Dems will never do so long as they believe they can win by scaring the hell out of seniors.
 

Of course, this requires a rational discussion of alternatives which the Dems will never do so long as they believe they can win by scaring the hell out of seniors.

What do you know about rational discussion?
 

Raising taxes is "harming your kids"? Good God, what infantile rhetoric.
 

BD: Of course, this requires a rational discussion of alternatives which the Dems will never do so long as they believe they can win by scaring the hell out of seniors.

mattski: What do you know about rational discussion?


Perhaps something more substantive than "Paul Ryan's Medikill plan," or less childish than "What do you know about rational discussion?"
 

Steve M said...

Raising taxes is "harming your kids"? Good God, what infantile rhetoric.

Raising taxes on our children to pay us in our old age is not harming our children?

Do you have kids?

Take the government out of this for a moment. Would you call your kids and demand that they pay you a couple hundred dollars a month?
 

Do you have kids?

Blankshot, did you finally manage to knock up your wife?
 

Blankshot, why didn't you care about taking money from your kids when we were pissing away $2 billion a month in Iraq?
 

My first thought on reading Sanford Levinson's post was McConnell was tempting the Democrats with the perennially argued blue-pencil, line-item veto; and thereby advancing the sort of independent executive which the Federalist Society would like to see. I think the way to more spending for Democrats is frontal, they just need good programs to advance; and that is where their efforts should go, to have something substantial to offer voters next election.

Still, it is interesting structurally that the lower chamber, the one with an only two-year term for the elected representative, is the part of congress which regulates the purse.
 

I have more faith in the American people than you do.

Bart, what you have, in spades, is one of the great selective memories of all time. You don't remember contradicting yourself and you don't remember getting your ass handed to you, both of which happen here on a routine basis.

Me, I remember your wonderful Bush-era arguments condemning jury-trials. That speaks volumes to your "faith" in our countrymen. I remember you boasting how rough the treatment of liberals on your beloved mil-blogs just a few short months before you whined about a few of us gloating over Obama's election. I could go on, but what is the point?

"childish"

Ya. I'll take childish over pathological, Kay?
 

Something the media will not show you - a House GOP member and the head of Social Security puzzling over why the Obama Treasury would be unable to pay Social Security checks.

http://hotair.com/archives/2011/07/13/video-social-security-chief-actuary-confirms-a-decision-to-withhold-checks-would-come-from-the-treasury/
 

Bart, it's called The Budget and Impoundment Control Act of 1974.
 

DG:

The progressive justifications for the President to unconstitutionally seize Congress' Article I power to borrow money get progressively weaker.

The Budget and Impoundment Control Act of 1974 simply says that the President has to spend the funds appropriated by Congress. If Congress has not provided the funds, there is nothing to spend and the law is moot.

Prioritizing the available funds is not a line item veto.

Prof. Michael McConnell is absolutely correct. The Public Debt Clause of the 14th Amendment simply means that the Constitution requires the President to spend the available money on servicing the debt first.
 

Read the post Bart. The debt will get paid, other things will not.
 

In his customary constitutional simpletonian manner, our yodeler provides simple answers:

"Prof. Michael McConnell is absolutely correct. The Public Debt Clause of the 14th Amendment simply means that the Constitution requires the President to spend the available money on servicing the debt first."

And just how does Section 4 - or the rest of the Constitution as amended - define "public debt"?
 

Let's give a "heads-up" to our yodeler for Colorado having a less than 20% obesity rate, unless his current photo does not accurately reveal his avoirdupois. Yodeling may cure obesity but after a while, who pays attention?
 

Shag:

Public debt has a plain and widely recognized meaning of money borrowed by a government. Public debt does not equal public liability.
 

Our yodeler fails to provide a supporting cite for this:

"Public debt has a plain and widely recognized meaning of money borrowed by a government. Public debt does not equal public liability."

What about takings in violation of the Fifth Amendment? Once again, our yodeler provides constitutional simpletonism.
 

This comment has been removed by the author.
 

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