The Debt Limit Debate and the War Powers Debate

JB

In my last post, I compared the problems facing the Administration to two other constitutional struggles, Lincoln's suspension of habeas corpus in 1861 and Truman's seizure of the steel mills in 1952, both involving presidential action in time of war.

In fact, in many respects the constitutional analysis of section 4 of the Fourteenth Amendment is similar to the constitutional debate over war powers. The question in both cases is when the President can act unilaterally without Congressional approval. In the war powers debate, Congress has the power to declare war and raise money for war; in the debt ceiling debate, Congress has the power to appropriate new funds and authorize new borrowing. In both cases we must ask whether the President's action is authorized by Congress (in which case the President's power is at its height), whether it is in defiance of Congress (in which case the President's power is at its "lowest ebb"), or whether it exists in a "twilight zone" where Congress has not clearly spoken (These categories are drawn from Justice Jackson's famous concurrence in Youngstown Sheet & Tube Co. v. Sawyer, the Steel Seizure Case).

Because the structure of the issues in both situations is so similar, we should be very reluctant to give the president unilateral authority to enforce section 4 through issuing new debt in open defiance of Congress unless there is absolutely no other alternative to avoiding financial Armageddon.
Read more »
Posted 2:55 PM by JB [link]

Should Fort Knox and Yellowstone be placed on the auction block?

Sandy Levinson

The value of all gold held by the United States Government, as of June 30, 2011, according to the United States Treasury, was $11,041,058,821.09. which seems to be a "mere" eleven billion, 41 million, 58 thousand, 821 dollars and nine cents. I don't know what the value of, say, Yellowstone National Park is. I raise this with regard to Jack's invaluable posting about the precedent conditions to the President's being able to declare a sufficient "existential economic emergcy" to warrant either the invocation of Section IV of the Fourteenth Amendment or a more Schmittian declaration of Lockean prerogative power to act in an emergency to preserve the overall political order. He suggests that it must follow doing everything legally possible to enable the US to meet its debt. This means, among other things, getting money, since the basic point is that there might not be enough money in the Treasury to satisfy all creditors. Well, one way to get money, of course, is to sell assets. And the first two that came to my mind, obviously, were America's gold reserve and Yellowstone. I invite others to think of what they could imagine putting on the block. But is it really the case that the US must in fact sell down its resources in order to prevent the debt from being called into question?
Posted 2:39 PM by Sandy Levinson [link] (21) comments

The Brief for the United States Arguing that Section 3 of the Defense of Marriage Act is Unconstitutional

Marty Lederman

A landmark legal development appears largely (but not completely -- see, e.g., Nan Hunter and Chris Geidner) to have escaped significant public and blogospheric attention. Last Friday, the Department of Justice filed the first brief for the United States on the merits arguing that discrimination on the basis of sexual orientation is subject to heightened constitutional scrutiny, and that therefore section 3 of the Defense of Marriage Act -- which denies to same-sex married couples all of the status, recognition and federal benefits otherwise available under federal law to married persons -- is unconstitutional. The brief is, of course, the product of a constitutional determination to that same effect made by the President on the recommendation of the Attorney General, announced back on February 23d.

The brief speaks for itself.

Brief notes on ancillary matters, to provide some context:
Read more »
Posted 6:03 AM by Marty Lederman [link]

Under What Circumstances Can The President Ignore the Debt Ceiling?

JB

The Fourteenth Amendment imposes a constitutional duty on both the President and Congress not to act in such a way as to bring the validity of the public debt into question. As I have explained in previous posts, the purpose of section 4 was to prevent the political branches from holding the validity of the public debt hostage as part of a political threat or in order to exact political revenge.

I believe that section 4 was designed to prevent what the Republican leaders of Congress are currently doing. Members of Congress should stop trying to use the risk of default to hold the country hostage in order to win concessions on ordinary matters of politics. The should simply increase the debt ceiling to match appropriations that Congress has already made. Then they should have negotiations about taxes and federal spending.

In the press and in the public commentary, however, the issue has been repeatedly posed as whether or not the debt ceiling is constitutional under section 4 of the Fourteenth Amendment.

This is the wrong question.
Read more »
Posted 7:55 PM by JB [link]

What is he waiting for? Reflections on the 14th Amendment, Section 4 argument

Sandy Levinson

It is clear that Section 4 of the Fourteenth Amendment is now, in Mark Tushnet's helpful reformulation, "on the table" in the current debate over the possibility of a US default on its debt. Or, more accurately, it is "on the table" with regard to a number of commentators and pundits, including, for example, Katrina vanden Heuvel, who argues in today's Washington Post that its invocation is the best way to end the crisis. But what about the White House itself? We are also told that ever optimistic President is calling leaders of the Congress to the White House to engage in yet more bargaining in which it appears, more and more, that he is willing to give away the store with regard to traditional Democratic Party commitments in order to be able to tell the public that he's really a moderate guy who deserves re-election.

Does he have a Plan B if the Republican Party, reading the same tea (and Tea Party) leaves, decides that it doesn't want to accommodate his re-election plans and is willing to role the dice on a default? Is the OLC, for example, with its newly-confirmed head, preparing a memorandum on the President's authority to invoke Section 4? And, if the answer is that it doesn't support presidential authority, is he looking for other, more compliant counsel, as happened, notoriously, with the War Powers Resolution and its notion of "hostilities"? And, if he is even considering that option, why doesn't he just announce it this very minute, given that it would instantly change the bargaining leverage, given that the Republicans are betting that he will indeed give away the store in order to avoid default. But now he doesn't have to give away a thing, since the Constitution protects him. (It would be as if they demanded the destruction of Medicare in order for him to pardon a prisoner.)

Emergencies, we have been told by the Supreme Court, don't create power, but they do provide the occasion for using powers that are already there (even if hitherto unrecognized) in the Constitution. This seems to be a model example of that proposition. So why is Obama remaining absolutely silent about this and furthering the impression that he is a punching bag for people like Mitch McConnell and Eric Cantor? (Or is he figuring that it's worth giving away the store in order to get the Republican leadership to defy Grover Norquist with regard to some basically meaningless tax increases on very rich people and thus throw the Republican Party even further into turmoil? But, frankly, if that's the calculus, they he is playing domestic partisan politics just as much as the Republicans.)
Posted 12:13 PM by Sandy Levinson [link] (42) comments

Sorting Through the Somali Case

Deborah Pearlstein

Cross-posted at Opinio Juris

Big news in the past day is the Obama administration’s announcement that a Somali national captured by the U.S. military somewhere in the Gulf has been transferred to New York for federal prosecution on terrorism-related charges. According to the Justice Department (DOJ), the man, Warsame, was “questioned for intelligence purposes for more than two months” after his capture on April 19, 2011. The Times is here. Bobby Chesney has a link to the indictment and some analysis here.

Between ongoing debates on the Hill about the need to clarify the domestic authority for the President’s use of force against Al Qaeda et al., largely unrelated but similarly vigorous debates about the legality of operations in Libya, and this, an already busy summer on matters U.S. law and security-related just got a lot busier. Still trying to digest what is known/not known about the latest case, but for now it might be helpful just to highlight some of the questions relevant to assessing the legality of the U.S. actions.
Read more »
Posted 10:58 AM by Deborah Pearlstein [link]

The Ph.D. in Law

Jason Mazzone

Ever since I began teaching, I have believed that law professors in the United States should hold a Ph.D. in law. That belief is even stronger today. One reason law professors should hold a Ph.D. in law is that doctoral training in law would improve the quality of legal scholarship. For example, much of the scholarship that is produced nowadays in my own field, Constitutional Law, is not especially good. There are likely a variety of reasons for this, including the inability of many authors to distinguish between writing an academic article and authoring a legal brief. Doctoral training, with a substantial dose of training in scholarly methods, would head off this and other problems.
Read more »
Posted 2:15 PM by Jason Mazzone [link] (26) comments

Does Public Financing Encourage Political Polarization?

Rick Pildes

The LA Times today reports that the Arizona Clean Elections Act, which the Supreme Court last week held unconstitutional, worked in practice primarily to benefit grass-roots, insurgent conservative candidates. Laws like this might in general tend to benefit grass-roots candidates, at least in lower cost elections, like state legislative races; in largely conservative states, like AZ, that will mean grass-roots conservatives, while in largely liberal states, that will mean grass-roots liberals. Does this dynamic then mean, ironically, that public financing encourages greater political polarization, as seems to have been the case in AZ? Perhaps that's the reason Justice Sandra Day O'Connor, who understands AZ politics on the ground, has (surprisingly to many) opposed the AZ public financing laws.

Here's an excerpt from the LA Times article:

One of the architects of the conservative lock on the Arizona statehouse is political consultant Constantin Querard. Over the last decade, Querard recruited grass-roots conservatives to challenge established incumbents. The key, he said, was the Clean Elections Act.

"The average conservative, the person who was interested in limited government, did not have a Rolodex that allowed them to go out and raise $30,000, $40,000," Querard said.

Querard stumbled on the solution in 2002, when a legislative seat opened in a solidly Republican Phoenix-area district. He viewed all the candidates in the GOP primary as too liberal. Three weeks before the filing deadline, he persuaded a homemaker named Colette Rosati to run, reassuring her that she would get state money if she rounded up enough backers. She won the primary, and an Assembly seat.

"If you can get a conservative competitive money against a liberal, the conservative wins," Querard said. "The conservatives who don't like Clean Elections love the Legislature Clean Elections gave them."

Posted 10:51 AM by Rick Pildes [link] (8) comments

A terrific book well worth reading (and pondering about)

Sandy Levinson

I just finished a new book by David Nichols, Eisenhower 1956: The President's Year of Crisis--Suez and the Brink of War (Simon and Schuster). I can't recommend it highly enough, not least bccause it's a real page turner, even if one knows the outcome (i.e., World War III doesn't break out as the result of Soviet intervention in the Suez crisis). But it also has extraordinary resonance with regard to our situation today. Let me suggest a number of things well worth thinking about:

1. We were, overall, very lucky to have Dwight Eisenhower as President instead of Adlai Stevenson, at least with regard to foreign policy. What is really impressive is how committed Ike was to the US not getting into new wars. He won in 1952 on his promise to end the war in Korea (which he did by accepting a staelemate that we live with today), and he vetoed going into Vietnam. He was absolutely insistent that the US not back the colonial powers France and Great Britain in their misguided effort to "teach Nasser as lesson" by occupying the Suez Canal after his nationaliztion (caused, to be sure, in substantial measure by Eisenhower's mistake in accpeting Dulles's advice to cut off an offer to finance the Aswan Dam). Reading this book has led me to believe that Ike may be the only President since World War II whom one should really have trusted as Commander-in-Chief.

Stevenson, on the other hand, seems a more disappointing figure the more one actually finds out about him. Arthur Schlesinger's collection of letters, published a couple of years ago, revealed that Stevenson was at least as cool to civil rights as Ike was. Stevenson, after all, selected Alabama Sen. John Sparkman as his running mate in 1952. There is no reason to believe that Stevenson would have ever named anyone so progressive as Earl Warren to the Supreme Court or appointed such a progressive Attorney General as Herbert Brownell. Moreover, turning back to the point at hand, Stevenson was a hawk on Suez, advocating supporting our purported allies (who absolutely betrayed Ike by lying to him about their plans in the Middle East) in the name of the fight against Communism and supporting Israel (which also behaved perfidiousy, in alliance with France and Great Britain). (Eleanor Roosevelt was similarly supportive of Israel.)

2. Apropos the current discussion of unilateral presidential power, much of which is dominated by Yale faculty, former and present, and Yale alumni, Ike turns out to be a classic Whig, totally out of sympathy, I think it is fair to say, not only with the executive-branch exuberance expressed most strongly by John Yoo, but also, I strongly suspect, with a milder version, by Akhil Amar, whose contribution to Slate was titled "Bomb Away, Mr. President," defending what many of us think is an extraordinarily dubious interpretation of the War Powers Act proferred by former Yale Dean Harold Koh. (Obviously, the War Powers Resolution, for better and worse, entered American politics and law more than a decade after Ike was President.) Over and over, Ike emphasizes that he can employ no force in the Suez Canal unless the Egyptians "attacked our people" (p. 136). "Anything more, [Ike] believed, would require congressional approvalm" according to Nichols. On July 31, 1956, after Congress had adjourned--another reminder of what a remarkably different world it was then--Eisenhower ordered Secretary of State John Foster Dulles to go to London immediately "and make clear how impoossible it would be to obtrain Congressional authorization for participation by the United States in these circumstances." (p. 140.) In a telephone conversation with the almost hysterical Anthony Eden, who almost demanded that the United States offer full support to the UK, Eisenhower "remineded Eden that the United States could join in military action only if Congress was called into special session. For Congress to approve intervention, 'there would have to be a showing that every peaceful means of resolving the difficulty had previously been exhausted.'" (p. 142). "The country will not to war ever while I am occupying my present post," Eisenhower told a news conference, "unless the Congress is called into session, and Congress declares such a war." (p. 167).

It is inconceivable, I believe, that Ike would have thought himself authorized to go to war in Libya. There was, after all, no attack, or threat of same, on any American. And I can't imagine that we would view "hostilities" as involving only threats to American lives and not the use of military force in circumstances that could (and amlost inevitably would) take on added implications after the initial decision. I sus pect, therefore, that he'd be quite sympathetic to the critiques that Yale professors Bruce Ackerman and Oona Hathaway have leveled at the Obama Administration's assessments of its own powers.

To be sure, there were limits to Eisenhower's Whiggery. "Our people should be alert," he told a meeting of advisors. "If the Soviets attack the French and British directly, we would be in war, and we would be justified in taking military action even if Congress were not in session." (p. 250). The reason is tht Ike took NATO with great seriousness, and an attack on the French or British, even if they were illegitimately in the Suez (which was Ike's view), would be treated as an attack on the US. This seems to support Robert Taft's view that NATO did indeed fundamentally reorder the United States Constitution by empowering the President to enter unilaterally into war even in the absence of an attack on the United States or even American soldiers serving abroad.

3. Ike was far sicker than the American public was told. His White House doctor seems only semi-competent. Stevenson made Ike's health a campaign issue, but the White House, not to put too fine a point on it, lied through their teeth about the actualities. Given that there is some reason to believe that Ike was less than taken by the qualifications of his Vice President, Richard Nixon, it was almost criminally irresponsible of him to run for re-election, perhaps at all, and/or to do so with Nixon as his running mate. It is a miracle that he survived (and, indeed, didn't die until well into the 1960), but that doesn't justify his lack of candor and irresponsibility vis-a-vis Nixon.
Posted 5:03 PM by Sandy Levinson [link] (21) comments

More on the Original Meaning of Section Four of the Fourteenth Amendment

JB

Over at Point of Order, Michael Stern responds to my account of the legislative history and original purposes of Section 4 of the Fourteenth Amendment, the Public Debt Clause.

He asks three useful questions.

First, why should we pay attention to Senator Wade's speech, which I claim explains the purposes behind section 4, when his proposal was not the final version?

Second, given that the language of section 4 changed through the various proposals, how should we understand these differences in interpreting the Public Debt Clause today?

Third, there is a legal difference between repudiating debt and merely defaulting on debt. So why shouldn't we read the Public Debt Clause quite narrowly to prohibit only direct repudiation of debt, instead of mere defaults or threats to default? Under that interpretation, nothing the contemporary Republicans are doing would fall within the prohibitions of the Clause.

Let me answer these questions in turn.
Read more »
Posted 9:55 AM by JB [link]

Constitutional Bluffing

Gerard N. Magliocca

The lively exchanges about the debt ceiling and Section Four of the Fourteenth Amendment raises the following question: Is it appropriate for the President (or any other public official) to use constitutional argument as a bluff?

In other words, suppose that an Administration threatens to invoke a particular textual provision or line of reasoning even though it has concluded that the argument is without merit. The threat generates the desired compromise. No constitutional violation occurs and no binding precedent is created (such as an OLC opinion). Is that a problem?

Here's why you might say yes. There should be a presumption of good faith in constitutional argument. That is what we would say if someone was making a claim to a court. So unless the President has a good-faith basis in his stand, then it is wrong for him to engage in saber rattling, especially if the threatened action would be highly disruptive (defying a Supreme Court holding or a statute, for example) and make brinksmanship more likely in the future.

Here is why you might say no. There is no good-faith presumption for making legal arguments to the media. Likewise, there is no such requirement for statements at the bargaining table or in public comments that are not taking an official position. And if no constitutional violation occurs, that's all that matters.

I raise this issue because what constitutes "off-the-wall" for purposes of bluffing is different from how we would evaluate the merits of that argument. The threshold, I think, is lower, and thus Mark's comparison of this situation with Bush v. Gore may not work.

On that note, have a Happy Fourth of July! The Declaration of Independence, fortunately, was not a bluff.
Posted 9:20 AM by Gerard N. Magliocca [link] (48) comments

"Opinions on the Shape of the World Differ"

Mark Tushnet

In response to Brad DeLong, I'll try once more and then stop unless I feel really really provoked. THERE IS NO "FACT OF THE MATTER" on whether a constitutional argument is good or bad, as there is about the shape of the world. Constitutional arguments are good if there's enough political wind behind them to make them plausible/credible/winning among relevant audiences, bad if they don't pass the plausibility threshold among those audiences.
Posted 3:25 PM by Mark Tushnet [link]

A (Modest) Apologia

Mark Tushnet

Brad DeLong is a very good economist, from whom I've learned a lot about the Great Depression and the Great Recession. And, he's a pretty good polemicist. But, he's not a lawyer, and has to rely on others for his legal arguments. His sources on the Section 4 argument aren't all that great.
Posted 11:13 AM by Mark Tushnet [link]

"What Part of 'Republican Form of Government' Don't You Understand?"

Mark Tushnet

That was Jack Balkin's reaction to Bush v. Gore, and I confess that it's mine to the emerging Section 4 argument about the debt ceiling. To repeat my structural point: With enough political wind behind it, any constitutional argument is plausible/credible/winning. And to add one: The Section 4 argument is Heller for liberals.* With no more than a one sentence dictum in a plurality opinion available, the Section 4 argument reverts to text and original understanding, bolstered by imputed general principles underlying our form of government.**
Posted 10:07 AM by Mark Tushnet [link]

Section Four and the Public Credit Clause

Gerard N. Magliocca

(Cross-posted at Concurring Opinions, and following on Jack's post)

Every constitutional provision eventually gets its day in the sun, and now it is Section Four of the Fourteenth Amendment’s turn. Here is the language of what my friend Michael Abramowicz calls the Public Debt Clause:

“The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.”

This language was intended to protect Union debt incurred during the Civil War, but the language sweeps more broadly. In Perry v. United States, 294 U.S. 330, 354 (1935) the Supreme Court (in a plurality opinion by Chief Justice Hughes) said the following about this text:

“While this provision was undoubtedly inspired by the desire to put beyond question the obligations of the government issued during the Civil War, its language indicates a broader connotation. We regard it as confirmatory of a fundamental principle which applies as well to the government bonds in question, and to others duly authorized by the Congress, as to those issued before the amendment was adopted. Nor can we perceive any reason for not considering the expression ‘the validity of the public debt’ as embracing whatever concerns the integrity of the public obligations.”

I want to add another observation about the debt ceiling. The statute, if interpreted to preclude the issuance of new debt to pay off old debt, may also violate the Public Credit Clause. In Perry, Chief Justice Hughes said:

“The Constitution gives to the Congress the power to borrow money on the credit of the United States . . . The binding quality of the promise of the United States is of the essence of the credit which is so pledged. Having this power to authorize the issue of definite obligations for the payment of money borrowed, the Congress has not been vested with authority to alter or destroy those obligations.”

In other words, the Public Credit Clause is an exception to the principle that one Congress cannot bind another through ordinary legislation. Thus, Congress arguably lacks the enumerated authority under Article One to default and is expressly barred from doing so under Section Four. Of course, the authority for both conclusions is slender–a plurality opinion in one case.

Let me direct your attention to some other helpful sources. The first is Professor Abramowicz’s article on “Beyond Balanced Budgets: Fourteenth Amendment Style,” 33 Tulsa L. Rev. 561 (1997). The second would be the briefs in Perry. The third (to toot my own horn) is my draft paper on “The Gold Clause Cases and Constitutional Necessity.”

Finally, I am going to go through my Bingham research to see what he said about Section Four. He did talk about that provision extensively on the campaign trail, though not, to my knowledge, on the House floor.

UPDATE: Sorry, I meant to open this to comments. Now it is. Fire at will.
Posted 7:25 AM by Gerard N. Magliocca [link] (6) comments