Balkinization  

Monday, September 30, 2013

Need Barack Obama be an "outlaw" (and would that necessarily be the worst thing in the world)?

Sandy Levinson

Henry Aaron has an op-ed flamboyantly titled, I assume by the Times, "Our Outlaw President," suggesting that Obama simply ignore the debt ceiling in order to avoid a genuine world-wide economic and domestic constitutional crisis.  He apparently prefers that to the trillion-dollar coin.  The point is that a President who proudly proclaims unilateral authority to use American firepower abroad, whether in Libya or Syria--or, for that matter, Iran--should be able to summon up a plausible argument, provided by Aaron, who cites an article by Michael Dorf and Neil Buchanan, that he can, to cite John Marshall, be able to "adapt to the various crises of human affairs."  There is literally no reason in the world to be fearing that the US will be unable to pay its debts, unless Obama suddenly decides that James Buchanan was right, after all, and that he is wholly without power to prevent the US from going over a cliff. 

It's time for him to begin educating the public that, with regard to the debt ceiling, "the only thing we have to fear is fear itself," because, in fact, he will exercise his full panoply of constitutional power to prevent default.  If Eric Canter wants to lead an impeachment movement on the basis that he has indeed acted like an "outlaw," then, to quote George W. Bush, "bring it on," as Barack Obama will be able to proclaim "Mission Accomplished" with regard to saving the world (and US) economy from the terrorists.  If we're going to have a constitutional, as well as a political crisis, at least let it be for the right reason, instead of hearing the President try to explain to the American people that there was nothing he could do (other than engage in surrender to the terrorists) to save the economy. 

Comments:

Of course he has power to keep America from going over a cliff. Trivially, he could phone Reid and tell him to stop messing around, and let one of the House CRs pass the Senate, so that he can sign it. Rather than engage in these hissy fits about how he's not going to permit a default, and will veto any bill that would prevent one which isn't precisely to his liking. (Followed by announcing his desire for serious debate of the matter, so long as the outcome is predetermined to his favor.)

No, I suppose Obama being an outlaw, (No sneer quotes needed, many of the proposed actions really are criminal.) is not the worst thing. I suppose he could start a nuclear war, or order his political opponents executed, or something of that nature.

It's bad enough in a man whose oath of office is that he "see the law faithfully executed", not that he "achieve is own policy ends even if illegally".
 

If the debt ceiling isn't raised, then Obama has no choice but to violate one law: he can refuse to spend the money authorized (in violation of the 1974 Budget Act and Train v NYC); or he can pay the debts (as he's required by the 14th A) or he can seize property (which he's forbidden to do by the 5th A). Minting a platinum coin is not obviously illegal; it appears to be perfectly legal, in fact. Nonetheless, I expect the GOP to argue that this is illegal too.

My guess is that Ted Cruz knows all this. I think, all along, he plans for Obama to react as Prof. Levinson suggests and then have the House impeach him.

Of course, it's a Catch-22 for Obama because he violates the law no matter what he does, so maybe they'll impeach him either way. Still, I'd prefer him to let the consequences fall on the economy and blame the Republicans. Not pretty in the short run, but maybe better in the long term.

Then he can prepare for Klayman's coup on Nov. 19 (it was thoughtful of him to announce the date in advance; Diem would have appreciated that kind of warning).
 

Shutting down the government implies the potential for bringing the end of the United States of America. Without a government there is no such country. It should be more than obvious that the Constitution was not intended to let a political faction in Congress do that. To the extent the debt ceiling or failure to pass continuing resolutions are construed to force the President to do that -- to try to prevent the President from performing executive duties under the executive power granted by Article II solely to the President -- it is clear they are unconstitutional. Therefore, there is no need for the President to perform as an outlaw.

It's great to see this kind of Constitutional analysis sounding in the separation of powers on a prominent legal website.
 

Henry Aaron in the NYT says, accurately, that the debt ceiling law "is a law without a discoverable purpose." Hint, hint: can such a law in conflict with a million laws each with clearly stated purposes be Constitutional?

Let's see, it's impossible for two laws in direct conflict with each both to be Constitutional. Hmm, the million laws with clearly identifiable purposes operate the nation-state called the United States of America. The other one would require the executive branch of the government to bring an end to the United States of America, after making decisions not authorized in the Constitution giving priority to some of the million laws over others.

Decisions, decisions. Only a Solomon could make this one, I guess.
 

Good heavens, Sandy, do you understand what you are suggesting?

Currently, we have a Caesarist president who legislates through the bureaucracy and ignores any laws of Congress which get in his way - even his own.

Now, you are suggesting that the president also seize the appropriations power and simply coin any money he wishes that the House declines to give him.

The House will impeach him and the Democrat Senate will ratify their president's unconstitutional seizure of congressional power by refusing to convict him.

At that point, we will have fully transitioned to a dictatorship and the only remedy will be revolution.

Great plan there.
 

"Henry Aaron in the NYT says, accurately, that the debt ceiling law "is a law without a discoverable purpose."

Henry Aaron is an ignorant moron, then.

Only Congress is constitutionally permitted to authorize borrowing. Prior to the institution of "debt ceilings", every time the executive found it needed to borrow money, it had to come to Congress, which would then pass a bill authorizing that particular instance of borrowing. This was not particularly troublesome because the government mostly ran in the black, such instances were not frequent.

Then along comes the 20th century, and the government decides to run in the red, increasingly in the red. The executive is coming to Congress more and more often, it's starting to eat up the legislature's time. So, as a conveience for Congress, they start pre-authorizing borrowing. Instead of just authorizing the amount of borrowing needed at that particular moment, they anticipate the need, and say, "You can now borrow up to $500 million dollars, but don't need to borrow it all immediately."

And so, until the executive has borrowed that full amount, he's not pestering Congress for authorization to borrow.

That "up to" is the debt ceiling. Without legislation, the executive can not borrow AT ALL. The debt ceiling is like a line of credit extended to the Executive branch, where you only have to go back to the bank when you reach your credit limit.

No debt ceiling, no line of credit, and no borrowing. You don't want rid of the debt ceiling, you want an INFINITE debt ceiling. You want the power to borrow, constitutionally reserved to Congress, to be given the the President.

To which I can only say, not only no, but HELL NO.
 

Mark:

If Congress refuses to increase the limit on the national credit card, government has enough tax revenues to pay for 2/3 of current spending - about what we spent under Clinton and more than enough to service the debt, pay SS and Medicare, a reasonable national defense and core services.

The fact that we are currently spending 50% more than under Clinton by borrowing is fiscal insanity.
 

Brett is, of course, wrong about the debt ceiling (he's wrong about the history too, but we can leave that aside). Abolishing the debt ceiling does NOT create an "infinite" line of credit. What it would do is authorize the President to borrow *up to the amount of spending already authorized by Congress*. It would allow the country to pay the bills Congress already incurred, but no more.

Failing to raise the debt ceiling is nothing more than a default on the debt, trashing a credit reputation built up over 225 years. It will make future borrowing more expensive, and likely have very serious effects on the world economy (which depends on new-issue US debt for many things).

As I pointed out above, if Congress fails to raise the debt ceiling, it will place Obama in a situation in which, no matter what he does, he must violate one law or another. I'm sure that's the plan.
 

Mark, without a law, the President can't borrow ANYTHING. Article 1, Section 8, Paragraph 2: The power to borrow is delegated to Congress, not the President.

Yes, I know there's a line of argument that Congress has implicitly authorized the borrowing by authorizing the spending. There are lines of argument to render any part of the Constitution void, but I don't give that particular argument much hope of prevailing in court.
 

Gov. Christie is now saying it's Daddy Obama's job to save us again. This sounds like "constitutional dictator" material again.

We have to stop entrusting so much in the President, including by asking them to use phony solutions like coins or putting them in the position Mark Field cites.

Congress passed a law here and a budget. Sound government requires them to raise the debt ceiling to uphold the "validity of the debt" which should "not be questioned" after all. The power of the purse is in their hands for a reason though the House is not using it very well. They should be put to the test here to force them to do their damn jobs.

Needing to explain all of this sounds right. Can we have some fireside chats? Shag will feel all nostalgic. No, seriously, it's important to have the basics explained repeatedly.
 

Joe, I'll bring the marshmallows but we'll need glare guard if Brett joins us. Here in the Boston area no sweaters are required as today will be in the 70s and the next two in the 80s, the upside of global warming. And the fireside is a reminder of FDR's proposed New Bill of Rights when elected to a 4th term that included the need for healthcare for all. With proper - and affordable - healthcare "We have nothing to fear but living too long." Log on.
 

"Sound government requires them to raise the debt ceiling to uphold the "validity of the debt" which should "not be questioned" after all."

It's not debt until they spend it. This is like claiming I'm welshing on a debt when I take my grocery list, scratch out steak, and write "chicken".

Sound government requires that the government stop living beyond it's means.
 

It's not debt until they spend it. This is like claiming I'm welshing on a debt when I take my grocery list, scratch out steak, and write "chicken".

Various things that has to be paid for were already authorized and guaranteed. If they aren't funded, the government is in breach.

Sound government requires that the government stop living beyond it's means.

There's various ways to reduce government spending, though from the time of Hamilton living with some sort of debt was seen as "sound government," but that isn't what this fight is about.

Postponing some aspect of ACA* for a year, a law in place to reduce costs in the long run, isn't going to do that. A serious way to deal with spending is not continual posturing and games like this. It is the normal process of legislating. For instance, a significant reduction in military spending. But, there is no demand for that. So, this whole thing is a sham.

---

* Reminder: chunks of it is popular, why a serious effort in repealing it won't go anywhere.
 

Brett with this:

"It's not debt until they spend it."

enters his Bizarro World of EEK-o-nomics. If there is a commitment as a result of legislation duly enacted under the Constitution obliging payment, that is debt and when it is spent/paid, it ceases to be debt. Brett's example with his grocery list is not in any way analogous to such legislation. Brett's obligation to pay for his subscription to 'GUNS R US" is a debt until he pays it. Instead of beef, Brett plays chicken.
 

Joe:

"Various things that has to be paid for were already authorized and guaranteed. If they aren't funded, the government is in breach."

In breach of what?
 

Brett, you're right that only Congress is authorized to borrow. The dilemma is that both a law (Budget Act of 1974) and a Supreme Court decision (Train v NY) *require* the President to spend what Congress has budgeted. Thus, the President is in a situation where he MUST spend the money but can't borrow to do it. One of those must give; it's only a question of which one.

"Various things that has to be paid for were already authorized and guaranteed. If they aren't funded, the government is in breach."

This is, of course, another basic problem, one which means the President (or Congress) would be violating the 14th A.
 

In "breach" of executing legislation duly enacted under the Constitution?
 

Mark, the thing being that the Court has yet to rule that the President has to spend money budgeted when he doesn't have it to spend.
 

Shag:

Legislation creating departments can and is changed continuously and funding for those departments is up to the discretion of the House. There is not duty to maintain either.
 

Brett, the plain terms of the Impoundment Act are mandatory: shall. I find it odd that you would take the position that Obama has discretion, which will, of course, include discretion about what to spend the money on. That's as arbitrary a power as any president has ever claimed.
 

Congress could pass a law requiring the President to balance the Washington monument on his pinky, too, and I wouldn't complain if he demured. If he doesn't have the money to spend, he doesn't have it. I don't demand Presidents do the impossible.

In Train v. New York, the President was refusing to spend money he had available to spend. He was not being asked to do the impossible, he was refusing to execute the law when executing it was perfectly possible.

Mind, this particular President has become notorious for his practice of failing to enforce laws he finds inconvenient. Which makes the idea he feels legally bound to spend any money Congress appropriates, no matter what lengths he has to go to, particularly hilarious.
 

Congress could pass a law requiring the President to balance the Washington monument on his pinky, too, and I wouldn't complain if he demurred. If he doesn't have the money to spend, he doesn't have it. I don't demand Presidents do the impossible.

There is money to do some things. So, as has been discussed by some people, what this does is require Daddy Obama to become Super Congress and determine what to use the money for.

Mind, this particular President has become notorious for his practice of failing to enforce laws he finds inconvenient.

The examples Brett tends to cite have been shown to be fallacious. But, the reality of the situation is the usual suspects who becry dictator Obama are hypocrites, since they want Obama to all by himself make the hard budgetary choices, while they play chicken.

Being an adult among children gets to be tiresome at times.


 

Wasn't the Affordable Care Act's death panel provision supposed to take care of the Bretts, Bart DePalmas, Louise Gohmerts and Rush Limbaughs of the world? Then again, Limbaugh's own artery clogged diet relieves the need to march him to the death panel.

I guess I'll just have to be happy for the millions of Americans (7.5 million hits on the New York exchange as of 2 PM today) who are now able to purchase previously unobtainable health insurance.
 

Perhaps, the Republicans can just declare victory.

http://www.dorfonlaw.org/2013/10/could-rebranding-end-budget-impasse-for.html
 

I'm no lawyer, so forgive my ignorance, but I'm puzzled by comments such as, "It's not debt until they spend it." That sounds rather circular to me.

When one of my customers (let's call that customer Congress) places an order on credit, I consider that a debt. I would not be sympathetic to, "It's not debt until I spend it."

Nor would I be sympathetic to a customer (again, let's call him Congress) who places an order on credit, then says he has not yet authorized payment when the debt comes due.

In both instances, I would call my customer (Congress) a deadbeat, then go to collections.

I also struggle with the idea that working within the executive's administrative authority somehow makes the president a dictator, then telling him to ignore congressional appropriations as he tries to figure out who will (not) be paid.

This is all really quite simple from my layman's perspective: Congress has instructed the president on what to spend, and Congress is obliged to pay its bills on time, whether via direct revenues, taking out a loan or minting more money. Anyone who can't grasp that should resign, because he is too stupid to be in Congress.
 

To address your point, the federal government routinely 'commits' to purchasing things, and then changes it's 'mind' about the purchase. It's one of the perks of being a sovereign state.

One Congress cannot bind another, save in the constitutionally specified case of having borrowed money.

People who want lots of spending, and never, ever, want spending reduced, have taken the position that, once the government commits to spending some money, the debt is already incurred, and the decision can not be undone. No, this has never been the case.
 

Brett, with this:

"One Congress cannot bind another, save in the constitutionally specified case of having borrowed money."

reaffirms G.D.' observation in a recent thread at this Blog that Brett is "beyond his depth," a polite way of pointing out our Bwana's (GWH*) shallowness. There are many laws on the books enacted by prior Congresses that remain in effect to bind the current Congress and the Executive as well until the current Congress and President take the steps to change such laws in the manner prescribed by the Constitution. Under the Constitution, the Executive has the responsibility to execute duly enacted laws. Bwana Brett's back of the envelope grocery list example of scratching out steak and substituting chicken is not the way government works. Bwana Brett needs a cad/cam.

*Great White Hunter

 

"until the current Congress and President take the steps to change such laws in the manner prescribed by the Constitution."

I'm not sure why you imagine that the above wasn't exactly what I meant by saying one Congress couldn't bind another: That any subsequent Congress could simple amend the law the previous Congress had enacted. By, say, passing a continuing resolution which didn't fund the program the previous Congress had created.
 

Tom:

Under law, the government must pay contracts for products provided or services rendered and its debt.

Statutory promises to give away taxpayer money are not contractual obligations and can be withdrawn both by repealing the statute or defunding the program.
 

"One Congress cannot bind another, save in the constitutionally specified case of having borrowed money."

This is could be relevant to the ACA repeal argument (which is no longer at issue, I guess), but it's irrelevant to the debt ceiling issue. The spending there was authorized by THIS Congress.
 

Bwana Brett (GWH*) could have explicitly said what he now says he meant. Since the Senate did not act on the House's shutdown vote, nothing got to the President. And what Mark said. I though engineers were precise, except for the pointy-haired Dilbert variety.

*Great White Hunter
 

Larry Solum's Legal Theory Blog provides the abstract and a link to Adam H. Rosenzweig's "The Article III Fiscal Power" that addresses the role of the Court in resolving fiscal crises resulting from the failure of Congress and the President like what is happening presently. I have downloaded this paper and plan to start reading it today. It runs 39 pages. While the current crises may soon be resolved before I finish, similar crises may occur periodically. Perhaps the Court can play a role.
 

Shag:

A budget impasse between the chambers of Congress and the President is the ultimate non-judiciable political question.

What would the Court decide under what authority?
 

Read the paper. I'm a third of the way through despite my eyesight problem. It reads well. At least check the paper's table of contents that raises standing, justiciability, political, etc, aspects.
 

I readily concede the right to cancel an order. My customers certainly have the right to cancel an order that has not been received, though certain penalties may be applied. But failure to pay after goods or services have been delivered is a serious issue that will at the very least impact the customer's credit rating (I might note that "promises to give taxpayer money away" strikes me as a bit unfair to employees and suppliers, but that's another matter).

Default is damaging in the extreme, more so when it is not necessary. Laying off employees who have acted in good faith is little better. Whatever the legal argument, these things are quite destructive in the real world.

Does the federal government spend too much? That's a great topic for discussion, and I would argue it does, though my list of wasteful spending does not necessarily coincide with yours. But shutting down the government and defaulting on debt is not the responsible solution.

The correct course is to honor your debts, then hash the rest out through budgeting and appropriations. The Senate Democrats were at fault for not producing a proper budget until this year; the Republicans are at fault for having repeatedly refused to go to conference now that both houses have finally approved budgets. Shame on them all.

But the greatest shame goes to those who would use shutdown and default as a weapon when neither is necessary. It demonstrates great arrogance and a disregard for others. Not much of a legal argument, I know. But I think it qualifies as common sense.
 

For several years I have patiently read Sandy Levinson's articles averring that the Constitution as written is fatally flawed, and unusable as the basis of the well-functioning government of a modern nation-state.

I used to nod and scoff.

I am reconsidering. I wish I thought I saw a path to a better Constitution in a nation that contains many Bretts and Barts.
 

I meant to agree with the idea that one Congress cannot impose decisions on subsequent Congresses. Or to put it another way: What Congress does, Congress can undo. That is entirely fair and quite essential if government is to adjust to changing times.

I might not like a later Congress undoing some program, but that's OK. Even that can be undone, so I'm content.

But I'm not so understanding when change is being forced by bomb-throwers. Do what I want, or I'll crash it all? That inspires nothing other than retaliation: Live by the sword, die by the sword. Not good for democracy, not good for the republic.

Again, not terribly legalistic. Just what I regard as common sense.
 

Shag:

The Rosenzweig paper is a perfect example of the sophistries in which progressives engage to strip powers from the elected branches of the government and grant them to the unelected bureaucracy or courts. This effort to empower the courts to impose taxes and debt to finance the progressive welfare state when Congress refuses to do so is particularly breathtaking example of this anti-democracy.

Rosenzweig offers the following syllogism:

1) A past progressive Congress enacted a statute promising to spend money or provide a good or service;

2) A present conservative Congress refuses to tax, borrow or appropriate enough money to enable the President to fulfill the promises to spend made by the preceding statute;

3) Because the President cannot faithfully execute the preceding statute by spending as much as promised, the present Congress's refusal to tax, borrow or spend is actually a violation of the Constitution rather than a perfectly legal exercise of Congress's plenary Article I power of the purse.

4) Thus, to enforce the Constitution, a progressive court may seize the Congress' plenary power of the purse and impose new taxes, borrowing or appropriations to maintain the progressive welfare state.

I cannot think of a clearer illustration of why progressivism and socialism are simply incompatible with democracy in general and our constitutional Republic in general.
 

Our SALADISTA ignores the bases Prof. Rosenaweig provides for what our SALADISTA describes as a syllogism. I'm two-thirds through the paper, hoping to finish it before the Thursday Lunch. Perhaps our SALADISTA will challenge the SCOTUS cases Prof. Rosenzweig relies upon. Our SALADISTA's:

"I cannot think of a clearer illustration of why progressivism and socialism are simply incompatible with democracy in general and our constitutional Republic in general."

is a reminder that he yearns for the Gilded Age that he could not enjoy in person. Maybe our SALADISTA has busied himself in CO building an Ark atop his mountain community awaiting the Second Gilded Age.
 

Joel's:

"I wish I thought I saw a path to a better Constitution in a nation that contains many Bretts and Barts."

suggests how our SALADISTA might stock his Ark.

 

I finished Prof. Rosenzweig's article and recommend it as it touches a lot of constitutional bases, rounding third and heading home - with the Roberts Court awaiting as umpire. Fans of Joseph Heller, as am I, should enjoy this quite readable article. After all, Constitutional Crises are Catch-22s.
 

Adam Liptak's NYTimes column "Experts See Potential Ways Out for Obama in Debt Ceiling Maze" poo-poos the judicial route. The column refers to a 2012 Columbia Law Review Article by Buchanan and Dorf that Prof. Rosenzweig frequently referred to in his his paper. Eric Posner has a view that Obama can act based upon emergency powers of a president. It seems that Obama does not plan some esoteric means to address this Constitutional Crisis, only the "Bully Pulpit" (shades of Republican President Teddy Roosevelt). That's okay as Obama "borrowed" the earlier GOP healthcare proposal from Heritage that Romney as Governor of MA had enacted in that state.
 

What would happen if, in response to an announcement by President Obama that he was going to issue debt on the basis suggested here, several potential Republican presidential candidates announced that if elected, they would not honor any debt issued without Congressional authorization? Do you think that might put a damper on the market for such debt?
 

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Conservatives no longer go back to Nixon/Agnew with their Watergate and whatever for support of their "principles." And conservatives have even abandoned the more recent Bush/Cheney for their messes that ended with the Great Recession of 2007-8. So who's left? Why conservatives go back to the days of the Gipper with his Reaganomics, but forget the baggage and garbage his eight (8) years produced that included foreign policy intrigues requiring presidential pardons. Ronald Reagan is still exalted by conservatives, who have had faulty memories for a long time with Nixon/Agnew before abandoning them.

Well, the NYTimes has an obituary on Arnold Burns that includes the Reagan Administration blemish on AG Ed Meese, the "father" of originalism, to remind non-conservatives of the flaws of the Reagan Administration.

So perhaps conservatives will have to drop Reagan as well, leaving Ike as their hero, despite Ike's farewell warning of the military-industrial complex that long fueled conservative candidates, including Bush/Cheney. [Note: It was Ike who put the military foot in the Vietnam door.]
 

Congress could pass a law requiring the President to balance the Washington monument on his pinky, too, and I wouldn't complain if he demurred. If he doesn't have the money to spend, he doesn't have it. I don't demand Presidents do the impossible.

If the President decided to resolve the conflict by borrowing the required amount of money to pay for spending mandated by law, why wouldn't you similarly not complain? After all, Congress asked the President to do the impossible. Why should Congress get to decide how the President resolves that? If Congress wanted a say, shouldn't it have thought about that before passing inconsistent laws?
 

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