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Balkinization
Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts On "winning arguments" in constitutional law
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Friday, July 22, 2011
On "winning arguments" in constitutional law
Sandy Levinson
This just in, re President Obama's "town meeting" at the University of Maryland today:
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.
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."
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.
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.
"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.
"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.
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.
Mark,
Is there any chance of a debt-limit increase passing the Republican House and then being filibustered in the Senate?
Besides, the Senate can use the budget reconciliation process to bypass the filibuster and raise the debt limit.
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.
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.
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.
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."
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.
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?
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?
Mark- every situation is different, to be sure. But I was asking if anyone could identify legally relevant differences.
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.
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.
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.
"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."
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.
"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?
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.
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?
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.
"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).
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."
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.
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.
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.
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.
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.
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.
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.
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.
"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
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.
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.
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.
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.
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.
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.
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.
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.
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.
Our yodeler's desperate ascribing of "blackmail" and "blackmailer-in-chief" to Obama discloses our yodeler's true colors.
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.
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.
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.
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.
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.
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.
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.
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?
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.
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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Books by Balkinization Bloggers Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |