Balkinization: On "winning arguments" in constitutional law

Comments:

Maybe it's more like Obama's lawyers aren't persuaded this is a winning argument NOW. What about August 3rd?

I think Obama knows the Republicans in the House will never agree to any compromise, grand or otherwise, and will pull the 14th Amendment card from his closely held hand at that point. If he shows this card too soon the Tea Party caucus won't climb out on that limb.

# posted by

Unknown : 4:12 PM

In this context, "Not a winning argument" may just mean, "If only a fraction of my most devoted supporters think this argument passes the smell test, I can't afford to resort to it when everybody is paying attention."

# posted by

Brett : 5:34 PM

It only needs to be a winning argument if the other side will come out against him in a serious and unified way. Obviously if the issue is bombing a Muslim country with a crazy dictator, the Republicans won't and haven't. Oh, they issued perfunctory complaints (as did anti-war democrats), but that's it.

If exercises congress's borrowing authority outside of congress's authorization, it'll be quite different. I suspect if there's massive enough public support by Aug. 2 for raising the debt limit to give him cover to seize that power, it'll be much more than enough to compel Boehner to deal. They may lose the Tea Party freshmen, but with the Democrats they'll have enough votes to pass something.

# posted by

Isaac : 6:16 PM

Sandy:

Why precisely do you keep calling for the President to violate the Constitution?

Seizing the Congress' power to borrow money does not even pass the smell test in Obama's amazingly politicized Justice Department.

Maybe there are legal lines even Obama will not cross or maybe he is just concerned about being blamed for raising the debt ceiling on his own or just maybe he does not want to be impeached.

# posted by

Bart DePalma : 7:55 PM

"Maybe there are legal lines even Obama will not cross or maybe he is just concerned about being blamed for raising the debt ceiling on his own or just maybe he does not want to be impeached."

Probably all three, actually. If he did in this political climate, he'd suffer massive political damage, especially since his defense of doing so would be to point to a scenario that never occurred (default). There's a good chance he'd be impeached by the House given the large and very, err, cranky Republican majority (though not removed by the Senate; it seems inconceivable he wouldn't be able to keep 44 out of 53 Democrats loyal, if there were any defections at all). There wouldn't be much time, but unlike Monicagate or Watergate, facts are not at issue so there need be no long investigations, just debate about law and the constitution. The impeachment of Andrew Johnson only took three months between the main offense and the end of the trial in the Senate.

# posted by

Isaac : 8:12 PM

"Sandy:

Why precisely do you keep calling for the President to violate the Constitution?"

In case you hadn't noticed, Sandy doesn't particularly like the Constitution. Obama seizing Congress' power to borrow would measurably speed the day that document was no longer in force.

# posted by

Brett : 9:49 PM

Let me suggest another use of the "constitutional option". I don't know if the debt ceiling raise can be filibustered under Senate rules, but suppose it can. One use of the 14th A would be for the Senate presiding officer (Biden) to rule that a filibuster is out of order as unconstitutional under the 14th A. The majority Dems could then sustain that ruling.

# posted by

Mark Field : 10:41 PM

Mark,

Is there any chance of a debt-limit increase passing the Republican House and then being filibustered in the Senate?

# posted by

Isaac : 11:12 PM

Besides, the Senate can use the budget reconciliation process to bypass the filibuster and raise the debt limit.

# posted by

Isaac : 11:50 PM

Isaac said...

Mark, Is there any chance of a debt-limit increase passing the Republican House and then being filibustered in the Senate?

Probably more likely than the Senate Dems offering an actual bill that the GOP minority would have the opportunity to filibuster.

# posted by

Bart DePalma : 11:50 PM

As I understand the rules, reconciliation is not available because the debt ceiling increase (a) isn't technically a budget bill; and (b) would "increase" the deficit.

I'm far from an expert on Senate procedure, though, so someone correct me if I'm wrong.

# posted by

Mark Field : 12:09 AM

As for whether the House would pass a "clean" bill, probably not. But suppose that the Senate follows my suggested procedure and then amends the House bill to strip out all extraneous matters. The bill then returns to the House.

That's when James Dean decides not to drive over the cliff.

# posted by

Mark Field : 12:11 AM

Mark,

Apparently, they can. From a House study:

"Congress may develop debt-limit legislation in any of three ways: (1) under regular
legislative procedures; (2) under House Rule XXVII; or (3) as part of reconciliation
legislation. Regardless of the process by which debt-limit legislation is developed, the
House Ways and Means Committee and the Senate Finance Committee maintain
exclusive jurisdiction over debt-limit legislation."

# posted by

Isaac : 12:22 AM

The NYTimes website features Eric A. Posner and Adrian Vermeule's op-ed (7/22/11) "Obama Should Raise the Debt Ceiling on His Own" that focuses upon constitutional aspects other than Section 4 of the 14th Amendment if Congress is deadlocked. The risks included impeachment efforts by the House which would surely add to the financial and economic turmoil from the failures of Congress. This is the "rock and the hard place" for Obama that I have referenced in comments on other posts on the subject of the debt ceiling at this Blog in response to mls. The ilk of the Tea Party believes it necessary to destroy the nation to save it. (Note: I'm not suggesting that mls is a Tea Party member, since I do not know.) So we've got Prof. Tribe saying no emphatically, Prof. Balkin (and perhaps Sandy) saying maybe and Posner and Vermeule saying yes emphatically. Surely Tea Partiers and other Obama haters are salivating - that this would bring Obama down - winning the battle but losing the war.

# posted by

Shag from Brookline : 4:42 AM

On April 14, 2010, a post by Professor Levinson (“What if it Were Bush?) said that Obama’s policy on targeted killings was one “that raises serious moral and legal questions and is counterproductive to boot.” He suggested that Obama was engaging in the same kind of cavalier attitude toward legal restrictions as his predecessor.

On June 18, 2011, a post by Professor Balkin (“George W. Obama and the OLC”) criticized Obama for cherry picking legal advice in order to reach the conclusion that he could ignore the War Powers Resolution with regard to Libya: “It is difficult to escape the conclusion that from the outset Obama was prospecting for opinions that would tell him that his actions were legal, and once he found them, he felt comfortable in rejecting the opinion of the OLC.”

Now both Professors seem to criticizing Obama for consulting his lawyers and apparently concluding that unilaterally raising the debt ceiling would be unconstitutional. Professor Balkin declines to take Obama’s statement at face value, suggesting that he is motivated by political factors rather than legal analysis. Professor Levinson wonders whether Obama has thoroughly searched the executive branch for a lawyer who might tell him that he can ignore the debt ceiling (surely, if he calls every lawyer in the executive branch, he can find someone who wants to be promoted to Special White House Counsel for the Debt Ceiling).

Is it just me, or is this rather inconsistent?

# posted by

mls : 10:02 AM

Thanks, Issac. For me, the key phrase is "as part of". I'm not sure what that means when the debt ceiling is raised independent of a budget deal.

Still, if reconciliation can be used, then the Senate vote will be simple majority rule.

mls, I've moved to dismiss some actions and simply answered others. Does that make me inconsistent, or are the situations just different?

# posted by

Mark Field : 10:25 AM

Mark- every situation is different, to be sure. But I was asking if anyone could identify legally relevant differences.

# posted by

mls : 11:33 AM

The CRS report Isaac linked to also says that Section 303 of the CBA prohibits consideration of debt-limit measures for a fiscal year unless a budget resolution has been adopted for that year.

# posted by

mls : 11:42 AM

Aside from the 14th amendment argument, I see a conflict of laws argument in which the appropriations bill, laws providing for social security, medicare and so forth, take precedent over the debt ceiling law under principles of statutory construction. Unless and until the debt ceiling law provides which debts take priority, I see it as unconstitutionally vague.

# posted by

BK : 11:47 AM

The CRS report Isaac linked to also says that Section 303 of the CBA prohibits consideration of debt-limit measures for a fiscal year unless a budget resolution has been adopted for that year.

That's interesting. Maybe my 14th A argument will have to be used after all.

# posted by

Mark Field : 12:09 PM

"The NYTimes website features Eric A. Posner and Adrian Vermeule's op-ed (7/22/11) "Obama Should Raise the Debt Ceiling on His Own" that focuses upon constitutional aspects other than Section 4 of the 14th Amendment if Congress is deadlocked. "

Read it, and Posner doesn't produce any other "constitutional aspects" that actually, you know, involve text you can point to. He simply handwaves a lot to distract from the fact he's saying, "Screw the Constitution, he should do it anyway."

# posted by

Brett : 1:05 PM

He simply handwaves a lot to distract from the fact he's saying, "Screw the Constitution, he should do it anyway."

But Posner's approach is so much more efficient. Think about how much time Obama could waste looking for a junior lawyer in some obscure corner of the federal government to validate the Section Four argument.

# posted by

mls : 1:31 PM

"The CRS report Isaac linked to also says that Section 303 of the CBA prohibits consideration of debt-limit measures for a fiscal year unless a budget resolution has been adopted for that year."

First, it also says that can be waived by a majority vote in either house. Second, wouldn't the debt limit be for *this* fiscal year, not an upcoming one, since we need it to pay for the FY 2011 budget?

# posted by

Isaac : 1:38 PM

It does say that it can be waived by majority vote in each house. I just thought it was interesting because it has not been mentioned in any of the discussions of this issue that I have read.

There was no budget resolution for fy11 so it doesn't matter which fiscal year is at issue.

# posted by

mls : 1:42 PM

Apparently Brett missed the third paragraph of the Posner/Vermeule article that obviously refers to Article II, Section 3, Clause 4 of the Constitution. It should be kept in mind that the Constitution does not provide for the superiority of any one branch over the other. The Executive has responsibilities under said Clause 4 separate and distinct from the other branches. Perhaps Brett, and mls seems to be yoked to him, would prefer Obama taking no action if Congress fails to act responsibly, even if the results may be catastrophic. Perhaps in that case the Obama haters would call for Obama's impeachment as apparently they would also call for if he did act. These Obama haters see this as a "lose, lose" situation for Obama and a "win, win" for their destroying the nation to save it. And what might rise from the ashes - a migraine?

# posted by

Shag from Brookline : 1:49 PM

Shag from Brookline said...

It should be kept in mind that the Constitution does not provide for the superiority of any one branch over the other.

Sure it does.

Each branch enjoys certain plenary powers which are not shared with the other. Congress' power to borrow money is one such plenary authority.

There are also powers that are shared by branches. For example, the Public Debt Clause of the 14A requires both Congress and the President to honor the nation's public debt.

There is no conflict between Congress' plenary authority to borrow and the elected branches' shared responsibility to honor the public debt because the United States can service its public debt without adding a dime to that debt to do so.

# posted by

Bart DePalma : 2:08 PM

"There was no budget resolution for fy11 so it doesn't matter which fiscal year is at issue."

Interesting. I didn't realize the solution to the government shutdown drama was a full-year continuing resolution (as I see now that it was).

# posted by

Isaac : 2:10 PM

So according our yodeler the Executive's power/duty under Article II, Section 3, Clause 4 trumps both Congress and the Judiciary.

And our yodeler still fails to provide a definition for public debt satisfying Section 4 of the 14th Amendment that would serve to support this of his:

"There is no conflict between Congress' plenary authority to borrow and the elected branches' shared responsibility to honor the public debt because the United States can service its public debt without adding a dime to that debt to do so."

The debt ceiling statute does not trump Section 4.

As for my statement that he challenges, let me state it in a less shorthand manner:

"It should be kept in mind that the Constitution does not provide for the superiority of any one branch over the other in interpreting or construing the Constitution."

# posted by

Shag from Brookline : 3:43 PM

Shag- I believe that I have stated that if the President has no lawful option to avoid catastrophe, the President may chose to act unlawfully and offer the defense of necessity should the Congress impeach him. Needless to say, the President must use this option only as a last resort, and should take care to minimize the constitutional damage as best he can.

Making implausible or far-fetched legal arguments to avoid this difficult choice (see John Yoo; see also Harold Koh) strikes me as exacerbating, rather than minimizing, the constitutional problem. I view the Section Four argument to be in that category. So does Larry Tribe. Even Professor Balkin, who gives the argument much more credence than I do, stops short of claiming that it would justify unilateral presidential action. Instead, he also believes that the President would have to invoke a necessity defense.

Marty Lederman has a post today arguing that the defense of necessity, even if it were available, would not apply to the current situation: “As horrible a prospect as the August 2d default is, it would be no Civil War: the United States would continue to exist, and the bulk of its laws would be executed. The preconditions for considering the legitimacy of Lincoln's dictum, then, are not present here.”

Lederman may be right about that- I am not sure at this point. If Congress were unable to agree on anything, and the bond markets started to melt down, I suspect that he might change his tune.

If you see something wrong with my reasoning, I am happy to listen. If you can't think of anything and just want to attack my (presumed) motives, don't bother.

# posted by

mls : 4:03 PM

The debt ceiling is not severable from the grant of authority given by Congress, to whom the power to borrow belongs (Article 1, Section 8). Congress has never passed a law allowing unlimited borrowing and never would. If you take out the statutory framework of the debt ceiling, the Treasury can't borrow a penny.

# posted by

Isaac : 4:05 PM

Shag from Brookline said...

And our yodeler still fails to provide a definition for public debt satisfying Section 4 of the 14th Amendment that would serve to support this of his:

"There is no conflict between Congress' plenary authority to borrow and the elected branches' shared responsibility to honor the public debt because the United States can service its public debt without adding a dime to that debt to do so."

Don't play dumb. The public debt is money borrowed at interest by the federal government from the public.

As for my statement that he challenges, let me state it in a less shorthand manner:

"It should be kept in mind that the Constitution does not provide for the superiority of any one branch over the other in interpreting or construing the Constitution."

I agree completely, but the judiciary stole the march on the elected branches in this regard with judicial review.

# posted by

Bart DePalma : 4:15 PM

mls said...

Marty Lederman has a post today arguing that the defense of necessity, even if it were available, would not apply to the current situation: “As horrible a prospect as the August 2d default is, it would be no Civil War: the United States would continue to exist, and the bulk of its laws would be executed. The preconditions for considering the legitimacy of Lincoln's dictum, then, are not present here.”

Lederman may be right about that- I am not sure at this point. If Congress were unable to agree on anything, and the bond markets started to melt down, I suspect that he might change his tune.

If the President would stop threatening to default on our debt and publicly acknowledge that the Public Debt Clause compels him to use tax revenues to service the debt and there are far more than ample tax revenues to do so, the bond markets would little note the passage of August 2.

Obama's threats to default, not to mention cutting off SS and Medicare, are reckless and reprehensible.

# posted by

Bart DePalma : 4:19 PM

Bart- your observation raises a mixed issue of fact and law. With regard to the law, does the President have the authority and/or obligation to prioritize payments. With the proviso that I have not looked at this in depth, I tend to think that there is a strong argument for his having the authority and at least a plausible argument for his having the obligation.

The factual issue has to do with whether the bond market would be satisfied with an announcement that Obama intends to prioritize payments. I have no idea and, with all due respect, I doubt that you do either.

# posted by

mls : 8:35 PM

mls:

The President is tasked with spending tax revenues and, when there are insufficient tax revenues to pay the government's current promises, the President has no other option but to prioritize spending.

The Public Debt Clause of the 14th Amendment compels the President to honor the public debt and thus makes servicing the public debt the first priority by law.

I do not believe that that Congress has enacted any statutes prioritizing spending, so the President has pretty much carte blanche to cut off SS and Medicare payments as he has threatened.

Congress may want to remedy that oversight in the FY 2012 budget and prioritize spending.

# posted by

Bart DePalma : 9:38 PM

Yes, by all means, let's make it more convenient for the country to not be able to pay its bills (i.e., for Congress to appropriate money that it's unwilling to allow to be raised). That's a great idea.

# posted by

Isaac : 9:52 PM

Here's our yodeler's definition, in response to me, of the definition of public debt under Section 4 of the 14th Amendment:

"Don't play dumb. The public debt is money borrowed at interest by the federal government from the public."

So I guess from this the government of China is included in the public, at least to the extent of 10% of certain debt. But seriously, folks, public refers to the federal government and the debt it commits to. And why is debt limited to money borrowed at interest? Debt, and presumably public debt, may include commitments to pay money for services or goods provided to the government that may not address interest, at least specifically. So here we have once again simpleton constitutionalism from our yodeler. Presumably as it was said by a Justice about pornography, our yodeler knows public debt when he sees it.

Here's the issue as presented by Posner and Vermeule:

"A deadlocked Congress has become incapable of acting consistently; it commits to entitlements it will not reduce, appropriates funds it does not have, borrows money it cannot repay and then imposes a debt ceiling it will not raise. One of those things must give; in reality, that means the conflicting laws will have to be reconciled by the only actor who combines the power to act with a willingness to shoulder responsibility - the president."

Cutting the baby in half Solomon-like will not work.

# posted by

Shag from Brookline : 5:37 AM

"only actor who combines the power to act with a willingness to shoulder responsibility - the president"

So, the President is daddy here, or something? (Or, mommy -- daddy often isn't very big on responsibility).

That seems more hopeful than anything else. More on their naivete (mixed with more unpleasant things) here:

http://prawfsblawg.blogs.com/prawfsblawg/2011/07/posner-and-vermeule-cynical-about-law-dewy-eyed-about-politics.html#more

# posted by

Joe : 8:24 AM

Remember the original subject of this thread-what constitutes a “winning argument” in constitutional law. Professor Levinson doesn’t exactly answer this question, but I infer that he thinks that a “winning argument” in this context means any argument that allows the president to do what he wants as long as he can find a single non-disbarred lawyer to agree with it (I exaggerate slightly for effect). I am not sure if this is a descriptive or prescriptive position on his part. The suggestion is that if the Koh “hostilities” argument (which Levinson considers weak if not “literally insane”) can cut it, surely the Section Four argument does as well.

There seems to be a lot of this going around (“my argument may be totally made up with no actual support, but its no worse than the argument that you agreed with on another occasion”). If it continues, we will end up with Posner-Vermuele in effect, with a thin veneer of legality on top. I think that this would be worse than having the President acknowledge, in extraordinary situations, that he has departed from the law based on perceived necessity.

# posted by

mls : 9:27 AM

Shag:

A public debt is formed when the public loans money to the government to be repaid in the future. I suppose it is theoretically possible for the public to loan money to the government without interest, but that never happens.

You might have an argument that government obligations under contracts with the public constitute debt.

However, services and transfer payments are promises, not debt. Promises can be unilaterally withdrawn by the maker.

# posted by

Bart DePalma : 9:44 AM

mls' "(I exaggerate slightly for effect)" I infer is his effort to win an argument that he has with Sandy with exaggerative inference. There may not be a magical constitutional answer to the failure of Congress to act rationally. Some - perhaps mls, surely Brett and our yodeler - look for a "no" answer; perhaps they believe that the consequences of default for failure to raise the debt ceiling are not that significant. The Great Recession (aka the Lesser Depression, courtesy of Paul Krugman) may end up as a challenge the Great Depression. The debt ceiling limit is a sideshow diverting attention from the real economic/financial issues to be addressed. See Robert Schiller's NYTimes column today: "Taxing And Spending, In Balance." If the Executive is the daddy or mommy here, then Congress are the bratty children throwing a tantrum.

# posted by

Shag from Brookline : 9:54 AM

In the term "public debt" in Section 4 of the 14th Amendment, "debt" is a noun and "public" is an adjective. Our yodeler continues to refer to the "public" in the form of a noun as making loans of money at interest to the government but fails to define "public" as a noun in this regard. As asked earlier, is China a member of this "public" as a noun?

Under basic contract law, perhaps an offer can be withdrawn before it is accepted but not after it has been accepted and performed. While Social Security and other entitlements may be "withdrawn" by Congress (together with the Executive), a government offer seeking goods and services which is accepted and performed cannot be withdrawn and may constitute a "debt" owed by the government and thus constitute a "public debt" within the meaning of Section 4 of the 14th Amendment.

Also, a "public debt" may arise under the 5th Amendment by a taking.

Let's not belabor this but let's understand that the meaning of "public debt" under Section 4 of the 14th Amendment is not as simple as our yodeler pretends to make his point that failure to act on the debt limit statute will not result in a default.

# posted by

Shag from Brookline : 12:02 PM

Shag from Brookline said...

Yes, foreign lenders are part of the public if they buy bonds offered to the public.

Government promises of services and transfer payments are not offers to contract or contracts. The government promises to provide these items to the people with no requirement of return performance by the recipient. Thus, services and transfer payments are promises.

Also, a "public debt" may arise under the 5th Amendment by a taking.

Good point.

The key element here is that the public has provided something to the government which the government is obligated to return or provide compensation for.

You cannot shoehorn the welfare state into this definition.

# posted by

Bart DePalma : 12:48 PM

A few blog residents are quoted in this article:

http://www.nytimes.com/2011/07/25/us/politics/25legal.html?hp

Madison's veto message on the national bank comes in mind:

"Waiving the question of the constitutional authority of the Legislature to establish an incorporated bank as being precluded in my judgment by repeated recognitions under varied circumstances of the validity of such an institution in acts of the legislative, executive, and judicial branches of the Government, accompanied by indications, in different modes, of a concurrence of the general will of the nation, the proposed bank does not appear to be calculated to answer the purposes of reviving the public credit, of providing a national medium of circulation, and of aiding the Treasury by facilitating the indispensable anticipations of the revenue and by affording to the public more durable loans."

As they say, we are "making memories" here, constitutional memories.

# posted by

Joe : 3:40 PM

a government offer seeking goods and services which is accepted and performed cannot be withdrawn and may constitute a "debt" owed by the government and thus constitute a "public debt" within the meaning of Section 4 of the 14th Amendment. Yes, the court has said this in many more cases than Perry. IIRC, it may include some pensions. The court has noted that the precise line that makes an obligation constitutionally protected by the 5th & 14th against future Congressional action has not been made clear.

# posted by

Calgacus : 7:29 PM

The House Tea Party Caucus is introducing a bill to prioritize spending and stop the Obama blackmail.

http://thehill.com/homenews/senate/173155-conservatives-look-to-force-obama-to-pay-social-security-military-in-case-of-default-

Long past time.

# posted by

Bart DePalma : 8:48 AM

Obama "vetoes" Boehner and Reid compromise.

http://www.washingtonpost.com/blogs/right-turn/post/white-house-stokes-debt-ceiling-crisis/2011/03/29/gIQAvx8DYI_blog.html

Enact it and dare the blackmailer-in-chief to veto it.

# posted by

Bart DePalma : 9:27 AM

Our yodeler's desperate ascribing of "blackmail" and "blackmailer-in-chief" to Obama discloses our yodeler's true colors.

# posted by

Shag from Brookline : 9:52 AM

shag:

That may be the most pathetic use of the race card yet.

# posted by

Bart DePalma : 10:04 AM

Constitutional level obligations include the public debt (even without the 14th amendment, it'd be required under the 5th) and any contractually obligations. The latter includes keeping functioning whatever parts of government are necessary to fulfill already inured obligations or to offer a refund.

It could be argued that the "take care" language elevates all statutes to the same level as stand alone constitutional duties, but to quote the President, I don't think that's a winning argument.

# posted by

Brad : 12:22 PM

Our yodeler should Google:

"Blackmail + debt ceiling crisis"

to understand that the Tea Party and GOP have been undertaking the blackmail going way back. It is our yodeler who now pathetically attempts to pin that label on Obama. Consider Chuck Krauthammer's 6/3/11 column titled:

"Charles Krauthammer: Debt-ceiling scare is blackmail - but it's progress"

Apparently our yodeler is reluctant to follow Chuck's theme.

Our yodeler's true colors were revealed starting promptly following Obama's inauguration on 1/20/09. All one has to do is go to the archives of this Blog for the proof of his vile, hatred for Obama.

# posted by

Shag from Brookline : 2:04 PM

The Senate Dems appear to have adopted the original GOP proposal for $2.7 trillion in cuts in exchange for extending the debt limit past their reelection campaigns in 2012.

http://hosted.ap.org/dynamic/stories/U/
US_DEBT_SHOWDOWN?SITE=AP&SECTION=HOME&TEMPLATE=
DEFAULT&CTIME=2011-07-25-12-14-43

If this report is legitimate, the GOP should take the deal, ram it through Congress and dare the President to veto it.

# posted by

Bart DePalma : 2:12 PM

On a more important note, the NFL lockout is over.

# posted by

Bart DePalma : 2:19 PM

Our yodeler demonstrates with this:

"On a more important note, the NFL lockout is over."

ardor for contact over political sports. While perhaps good for the economy, it won't solve the jobs problem for that many, although NFL beer commercials may improve our yodeler's legal specialty.

# posted by

Shag from Brookline : 3:31 PM

So who has standing to challenge the government's issuing debt above the debt limit, pursuant either to the 14th Amendment or to executive fiat? Not the Congressfolk who rely on their power to issue debt, see Raines v. Byrd. Certainly not the taxpayer, there being no identifiable tax incrase, see Arizona Christian School Tuition Org. I can't see any interest that would allow a state, indian tribe or foreign country to sue. If no one has standing to sue, then the only enforcement mechanism is impeachment or the political process. So let's let 2012 tell the story.

# posted by

Anonymous : 1:52 PM

I am somewhat surprised at the definitive statements so many have made about whether there would be standing to challenge a presidential action here. True, there would not be congressional or tax payer standing, but one could easily imagine private parties who would be injured (or arguably injured) by the president's issuance of debt beyond the statutory limit. For example, holders of prior debt might argue that this devalues their bonds.

# posted by

mls : 4:34 PM

The bondholders still have what they got when they bought the bond, a promise to repay backed by the full faith and credit of the US. If that faith is tarnished, it will be reflected in the cost of borrowing.

The way government borrowing is set up, under 31 USC 3102, the president authorizes the secretary of treasury to issue securities to pay for expenditures authorized and appropriated by Congress. (See US Const Art I Sec 9 cl 7 and US Const Amend XIV Sec 4). Sec. 3121(e) makes all decisions of the Secretary of Treasury regarding the issueance of debt final. 31 USC 3101 limits the amount of outstanding debt issued under 3102 to the debt limit amount. So 3101 is purely between the president and the congress.

Interestingly enough, it appears that in 1996 Congress temporarily exempted Social Security payments from being counted toward the debt limit. Such a measure could also defuse the current crisis by reducing the debt below the limit and assuring the continued payment of Social Security.

# posted by

Anonymous : 9:44 AM

I'm curious about this:

"Interestingly enough, it appears that in 1996 Congress temporarily exempted Social Security payments from being counted toward the debt limit."

While Section 4 of the 14th Amendment does not provide for a debt limit and does not define what constitutes "public debt," does Congress have the power to decide what may or may not constitute such "public debt," including changing its mind from time to time such as with Social Security?

# posted by

Shag from Brookline : 6:56 AM

Read that in the notes to 3101.

Certainly too bad that JB isn't taking any comments on his ongoing exploration of 14A4.

I was looking at some appropriation bills, and they all seem to start "There is hereby appropriated from funds in the Treasury not previously appropriated ..." So it seems that a government shutdown rather than an expansion of debt is what is called for. Obama would get to choose for which appropriations there was money in the Treasury, and we could see cutbacks in subsidies for farmers and air transport to small cities which Repubs oppose. Maybe he could even cut back on the bloated Homeland Security bureaucracy.

# posted by

Anonymous : 9:10 PM

All it takes to be an argument to win if the other party will come out against him in a serious and united. Obviously, if the question is to bomb a Muslim country with a crazy dictator, not the Republicans. Oh, that have issued complaints form (as did the Democrats against the war), but that's all.

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# posted by

Unknown : 7:26 AM