Of Constitutions and Constitutionalism

Guest Blogger

Balkinization Symposium on Linda Colley, The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World

JB

This week at Balkinization we are hosting a symposium on Linda Colley's new book, The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World (Liveright, 2021).

We have assembled a terrific group of commentators, including Erin Delany (Northwestern), Mark Graber (Maryland), Madhav Khosla (Columbia), Harshan Kumarasingham (Edinburgh), David Law (Virginia), Sanford Levinson (Texas), and Gerard Magliocca (Indiana).

At the conclusion, Linda will respond to the commentators.

Colbert and Diversity Changes to the ABA's Standards and Rules

Jason Mazzone

Every fair-minded person who heard the recording of the meeting between the Yale Law School diversity administrators and Trent Colbert over his Constitution Day invitation has concluded that something was seriously amiss in the way the administrators handled the incident. Indeed, the administrators’ views and urgings are so astonishing that without the recording it would be hard to believe the meeting even happened in the way it did. 

However things now shake out at Yale (an assessment is underway), there is a larger concern: it’s quite possible that the Colbert meeting represents standard practice on the part of diversity administrators every day in law schools (and universities more generally) around the country. One of the many striking aspects of the recording is that the YLS administrators offer their diagnoses and cures with a degree of certainty that comes only with regular training and frequent practice. It’s difficult to imagine this was all a one-time slip.  

The ABA should pay attention. 

Yale Law needs to learn to watch its language

Andrew Koppelman

A recent episode at Yale Law School, in which administrators disastrously mishandled a discrimination complaint, shows how today’s culture wars are sometimes fueled by mutual misunderstanding — sometimes even about the meaning of words.

I explain in a new column at The Hill, here.

L'Affaire Trap House at Yale Law School

Andrew Koppelman

The movement for diversity and inclusion has improved people’s lives in many tangible ways. A few days ago at Northwestern Law School, where I’m a professor, I went into the men’s restroom and saw that the school had provided tampons and sanitary pads on a shelf there. It made me happy. There are people here who menstruate and identify as male. Their needs matter, and the school now recognizes that. 

But in other respects, the diversity and inclusion movement is becoming the enemy of diversity and inclusion, imposing a cookie-cutter orthodoxy and trying to turn thinking human beings into marionettes. An already-notorious recent episode at Yale Law School (disclosure: I’m an alumnus) highlights the problem. It offers lessons in how to, and how not to, manage issues of inclusion. 

Trent Colbert, a Yale Law student who belongs to the Native American Law Students Association (he’s part Cherokee) and the conservative Federalist Society, had invited classmates to an event cohosted by both groups. "We will be christening our very own (soon to be) world-renowned NALSA Trap House … by throwing a Constitution Day Bash in collaboration with FedSoc," he wrote. The invitation promised “Popeye’s chicken, basic-bitch-American-themed snacks (like apple pie etc.)” and hard and soft drinks. 

It is unsurprising that Colbert did not know all the connotations of “trap house.” The term, which originally referred to crack houses in poor neighborhoods, has, according to Urban Dictionary, “since been abused by high school students who like to pretend they're cool by drinking their mom's beer together and saying they're part of a ‘traphouse’."  It is one of a huge range of slang terms from marginalized urban culture that has entered the mainstream, where many people acquire it ignorant of its etymology.   

The invitation was almost instantly screenshotted and shared to an online forum for law students. The president of the Black Law Students Association reportedly wrote in the forum, "I guess celebrating whiteness wasn’t enough. Y’all had to upgrade to cosplay/black face." She also objected to the mixer’s affiliation with the Federalist Society, which she said "has historically supported anti-Black rhetoric." The school’s Office of Student Affairs received nine discrimination and harassment complaints. 

The office quickly summoned Colbert: “We’d like to meet with you to discuss a deeply concerning and problematic incident that was reported to us.”  He was wary when he met with Associate Dean Ellen Cosgrove and diversity director Yaseen Eldik, anticipating that some kind of punishment might be imposed upon him. So he recorded it. That recording, as Ruth Marcus writes in the Washington Post, “offers an unsettling insight into the hair-trigger and reflexively liberal mind-set of the educational diversity complex.” But more than that, it is a lesson in how to do an important job badly.  

In the first place, a coercive summons (which this obviously was) was inappropriate. Colbert’s email could not plausibly have been construed as discrimination or harassment, both of which require identifiable victims. Yale might have invited him to a meeting, but should have made clear at the outset that no sanctions were contemplated and that it was his choice whether to come at all.

The first few minutes aren’t all that bad. They sound like responsible administrators somewhat clumsily attempting to deescalate a situation. Eldik explains to Colbert how the message was received by some other students: “In one paradigm you would think about the word ‘trap’ by way of the lens of a crack den or crack home. The racial association with that connotation would be bound up in some of the drug use that has been historically associated with poor black communities in this country.” That was useful information. Colbert told me that before this episode, he had thought it simply meant a “party house.”  As Above the Law’s David Lat observes, that “an erudite, historically informed analysis arguing for why ‘trap house’ should be considered offensive” might be informative, but the fact that “a mini-dissertation” was necessary ought to tell us something about whether it was appropriate or not to take offense. 

Some of Eldik’s claims were farfetched.  The "triggering associations," he told Colbert, were "compounded by the fried chicken reference," which "is often used to undermine arguments that structural and systemic racism has contributed to racial health disparities in the U.S." It is hard to imagine that anyone except Eldik made that connection. As it happens, there is a Popeye’s Fried Chicken restaurant near the law school. It can’t be racist to eat its food. 

Then came this disastrous blunder: "The email’s association with FedSoc was very triggering for students who already feel like FedSoc belongs to political affiliations that are oppressive to certain communities. That of course obviously includes the LGBTQIA community and black communities and immigrant communities." (The Federalist Society is one of America’s most influential legal groups, whose members include six Supreme Court justices.)

 This may have truthfully reported how some students feel. But Eldik should have distanced the law school from those feelings.  

The Washington Free Beacon, which first reported the story, claims that Yale’s leaders “now regard membership in mainstream conservative circles as a legitimate object of offense — and as potential grounds for discipline.” That’s an overreading – at this point in the conversation, there had been no mention of discipline – but Yale’s apparently uncritical endorsement of the complainants’ feelings  was a mistake. The cause of diversity is not promoted when stupid stereotypes about black people are replaced with stupid stereotypes about the Federalist Society. 

Five minutes into the meeting, Colbert sounds relieved that no consequences have been threatened. He tells Eldik and Cosgrove that he knew that people had taken offense at his email, but that no one had explained to him what the problem was. “I think I’ll just not use that word anymore,” he says. “I’ve used it openly for months and no one’s said a thing, but I think it would have been better if someone had said something.” 

He told me later that he was concealing his nervousness.  “It felt strange and uncomfortable.  I was on edge because I wasn’t sure what was going on. I had the impression that these people weren’t trustworthy.”  Yale Law Professor Monica Bell has defended Eldik’s good faith, and I have no reason to doubt it. But the coercive character of the conversation destroyed the possibility of trust. Colbert had every reason to worry that he was in danger.

I recount the rest of the story at the Chronicle of Higher Education, here.

Note that, as is usual with articles written for professional news sources, I was not consulted about the title of my piece and only learned of it after the piece was published.

Korematsu as the Tribute that Vice Pays to Virtue

JB

I've uploaded a draft of a recent article, Korematsu as the Tribute that Vice Pays to Virtue, to SSRN. This short piece is part of a symposium on Mark Killenbeck's recent attempt to rehabilitate aspects of Korematsu v. United States by focusing on the failures of lawyering in that case. Here is the abstract:

This essay responds to Mark Killenbeck's argument for partially rehabilitating Korematsu v. United States, the infamous Japanese Internment Case. Killenbeck argues that Korematsu deserves credit for announcing the doctrine of strict scrutiny for racial classifications, and that we should criticize the case because of serious defects in the Supreme Court's decisional process, which he details at length.

The quality of the decision making process in a Supreme Court case has very little to do with how a case is viewed by later generations, which are more concerned with what a case did and whether it was just or unjust from the standpoint of the present. The constitutional canon (and anticanon) are constructed by cultural memory, and cultural memory is largely indifferent to, if not ignorant of, the criteria of good professional lawyering that Killenbeck is most concerned with. The central reason why Korematsu is anticanonical today is that the Court reached a deeply unjust result of which later generations are ashamed.

Korematsu also deserves no credit for announcing the doctrine of strict scrutiny in racial classifications. First, as a threshold matter, because the test of strict scrutiny treats classification by the state as both the central vice of White Supremacy and the chief mechanism of contemporary racial injustice, the doctrine's limitations have done as much to ignore or perpetuate racial injustice as to remedy it. Second, Korematsu should get no credit for merely mouthing the words of strict scrutiny but doing nothing to effectuate them. The argument assumes that Korematsu's hypocritical pronouncement somehow caused later courts to adopt the doctrine and apply it in a just fashion. But it is far more likely that courts began to protect racial minorities for different reasons, and simply cribbed convenient language from Korematsu and Hirabayashi v. United States. Courts were making lemonade from lemons, as courts often do. Moreover, there were plenty of other sources of Supreme Court doctrine that would have done just as well.

Good legal decision-making, however desirable, is not the same thing as justice. And, for better and for worse, what we tend to remember years later about the work of courts — if we remember it at all — is not judges’ professional skill, their attention to the factual record of cases, their scrupulousness about procedural niceties, and their devotion to craft. Rather, it is whether, in the eyes of later generations, they did justice in their time.

Debt Limit End Game

David Super

            The single most likely outcome is a bipartisan deal that will allow both sides to claim they got something.  Sen. McConnell will claim he achieved policy concessions and Sen. Schumer will claim that he did not surrender anything of substance.  Since I have been working in Washington, one of the most common requests I have received from Hill offices is to “please draft an amendment for me but make sure it does not change current law.”  (That experience always makes it challenging to teach a certain canon of statutory construction with a straight face.)  Any number of impressive-sounding amendments are possible that would not change current law in any meaningful way.  For example, if the Democrats have agreed internally to a new, lower top-line number for their Building Back Better reconciliation bill by then, Sen. Schumer could agree to lower the ceiling in the budget resolution to that level.  Sen. McConnell is a remarkably gifted politician and likely would come up with something more elaborate than that.  Still, noisy but largely substance-free deals have been common means of resolving these sorts of problems since polarization has sharpened.

            The next most-likely scenario is an explicit Republican fold.  Democrats are increasingly angry that Sen. McConnell claims Republicans are leaving Democrats to pass a debt limit increase with their own votes while filibustering to prevent them from doing just that.  To deter similar maneuvers in the future, they may be unwilling to help him save face.  Although this brewing crisis has yet to register much with the average voter, business groups reportedly have expressed strong irritation to Senate Republicans privately.   

            The third-most-likely scenario would be for the Democrats to do as Sen. McConnell apparently desires and pass a debt limit increase through reconciliation procedures.  This option appeals to him because the reconciliation instruction would have to “specify the amounts by which the statutory limit on the public debt is to be changed”, seemingly ruling out the common recent practice of suspending the debt limit for some period of time (and hence avoiding the specification of a new number on which Democratic candidates could be attacked).  Some media accounts have overstated the difference between raising and suspending the debt limit:  the debt limit can be raised by inserting a formula, rather than a number, into the statute; this is done routinely when enacting continuing resolutions and other fiscal legislation. 

            As I discussed in more detail in a previous post, to raise the debt limit through reconciliation, Democrats would have to revise the budget resolution they adopted for Fiscal Year 2022 to include reconciliation instructions to raise the debt limit.  This could be done quite expeditiously in the House but would consume fifteen hours of Senate floor time, which would significantly limit the Senate’s ability to perform other functions (such as confirmations).  This also would allow Republicans to offer, and require votes on, a range of politically embarrassing amendments.  (To be sure, this ability would be significantly constrained by the strict germaneness rules that would apply to such a resolution).  Once the budget resolution was revised, Democrats still would have to report out and pass on the floor a reconciliation bill to actually raise the debt limit.  This, too, would be immune from filibuster but would require another twenty hours of Senate floor time. 

            A huge advantage Democrats have in this high-stakes game of Chicken, and a reason that a Republican fold seems more likely than a Democratic one, is that the Democrats will lose the ability to fold several days before the Republicans do.  For Democrats to raise the debt ceiling on reconciliation, they likely would need roughly a week even if they moved at break-neck speed.  By contrast, Republicans can drop their filibuster and allow Democrats to pass a debt limit increase with their own votes at the drop of a hat.  Chicken looks quite different if both drivers know that one of them has lost the ability to swerve.  Sen. Schumer’s conduct suggests that he has figured this out.  It is also true that, as resolute as he sounds, Sen. McConnell has staked out a position – no Republican votes for a debt limit bill – that has always been achievable if Republicans drop their filibuster and let Democrats vote.  He does not need to move the goalposts:  he has already put his caucus in a position where they can fold at any time and declare victory.  Thus, even if the Republicans "fold", they will still get what Sen. McConnell said they wanted:  the Democrats having to pass the bill entirely with their own votes. 

            A more remote possibility that President Biden recently floated was that the Democrats would abolish the filibuster and pass a debt limit increase as ordinary legislation.  This option would remain open to them after moving the debt limit through reconciliation has ceased to be feasible.  Having the Republicans filibuster a debt limit increase that they admit is necessary for overtly political reasons would provide Democrats powerful cover and might make some drop their objections to the change.  This seems an unlikely result, however, because Sen. McConnell likely would prefer to drop the filibuster of this particular legislation voluntarily rather than lose the filibuster for all legislation going forward.  After all, what does it profit a senator to gain the whole world yet forfeit his filibuster?  President Biden’s raising this prospect appears part of a strategy to raise the heat on the Senate Minority Leader. 

            Another remote possibility, but one more likely than a default, is that nothing happens by October 18 and President Biden takes unilateral action to nullify the debt limit.  He could simply declare it unconstitutional under section 4 of the Fourteenth Amendment and order the Treasury to continue borrowing to pay the Government's lawful debts.  This has been subject to considerable debate, on this blog and elsewhere.  This post is already long enough without my musings on whether the Constitution really is a financial suicide pact. 

            The President also could authorize some additional category of "extraordinary measures", ways of obtaining funds or postponing expenditures beyond the ones the Treasury has been relying upon in recent debt limit crises.  Unless these measures yielded quite large returns, however, they would only delay the reckoning modestly and hence might not seem worth the political cost to the White House.  Democrats likely would prefer a showdown now to one closer to the midterm elections.

            Or the President could direct the Treasury to mint a platinum coin in a very large denomination.  The coinage statutes give the Treasury broad discretion to create new coins in whatever denominations they deem appropriate.  Coinage historically has been regarded as something quite separate from the obligations that the debt limit constrains.  The Treasury then could sell this coin to the Federal Reserve for money that could be spent on the nation’s debts.  Moses did not bring the debt limit statute down from Mount Sinai; it is rather crudely drafted and reflects an era when financial practices were structured very differently than they are now.  No one should be surprised that it features numerous loopholes.  And doing this, like declaring the debt limit unconstitutional, would end these crises and their disruption once and for all:  although a subsequent Congress could theoretically narrow the coinage authority, it is far from clear that either party would work actively to reinstate the debt limit if it became nonfunctional. 

            If no deal is reached, the Republicans do not fold, the Democrats neither relent and use reconciliation nor destroy the filibuster, and the President rejects unilateral action, the Government could have a shortage of funds beginning October 18.  This is unlikely to look like the default that many people expect.  The Government will still have a great deal of money coming in and be able to pay many of its bills; it just will not be able to pay all of them.  Defaults in developing countries typically result from the inability meet a single, massive, indivisible tranche of debt service obligations, leaving no doubt that the government is in default.  By contrast, the U.S. Government is likely to start prioritizing which bills it pays first.  The government typically pays its bills as soon as it can, but it often has considerable legal leeway.  For example, it routinely reimburses states and others that provide Medicaid and other public benefits relatively quickly; it has some modest room for slowing that down.  It could start paying money due under contracts on the last lawful date.  The problem would tend to snowball, and eventually would become an unmistakable default.  In the meantime, however, different entities with different agendas would disagree about whether the Government was in default, potentially slowing the impact on the financial markets – which surely would recognize that, former President Trump’s proposals notwithstanding, the U.S. will eventually pay its debts in full.  And even slowing down the financial consequences modestly would give large donors the opportunity to demand that Senate Republicans stop filibustering the debt limit bill.   

            The kind of explosive, dramatic default that has occurred in some developing countries therefore seems the least-likely outcome.  That, however, hardly suggests complacency.  The debt limit impasse has already reached the point that leaders around the world are surely drawing conclusions about the dysfunction of our government and political system.  And in the medium- and long-run, that may well do more harm to this country’s interests and its ability to be a positive force in the world than a true financial crisis.

     @DavidASuper1

Money Bills and the Filibuster

Gerard N. Magliocca

To piggyback on Jack's post, a sensible distinction can be made between filibusters for general legislation and filibusters involving the debt ceiling. First, the reconciliation process itself recognizes the difference. Second, Section Four of the Fourteenth Amendment provides a basis for such a distinction.

Here's a third (and slightly longer) point. In my article on the filibuster a decade ago, I drew an analogy between the Senate's power to delay the enactment of legislation and the British House of Lords' power to delay the enactment of legislation. In British parliamentary practice, a sharp distinction is made between "money bills" (on spending, taxes or debt) and any other legislation. Money bills passed by the House of Commons may be delayed by the Lords for only a month. All other legislation may be delayed by a year. 

Thus, the Senate can conclude that debt ceiling legislation should be exempt from the sixty-vote cloture requirement without necessarily calling the filibuster as a whole into question. 

The debt ceiling and the filibuster

JB

We are at what appears to be yet another crucial moment in what sometimes seems like an endless sequence of crucial moments in the past five years. 

Majority leader McConnell wants Democrats to raise the debt ceiling through reconciliation. This means that they cannot simply suspend the debt ceiling, as Republicans did during the Trump years, but must name a specific amount that the Treasury is now authorized to borrow. Then Republicans will use that figure to run against Democrats as free-spending socialists in the 2022 campaign, even though the borrowing is partly to pay for the costs incurred by the Trump Administration, and especially shortfalls created by the Trump tax cuts in 2017. In other words, to gain talking points in the 2022 mid-term elections, Republicans want to risk a global economic meltdown.

If this sounds cynical and even nihilistic, that is because it is.

Democrats may not have enough time to use reconciliation. Equally important, Republican Senators who wish to grandstand (e.g., Cruz, Hawley) can find multiple ways to gum up the process. Thus, even if Democrats turned to reconciliation today, there is no guarantee that they could stave off default in time.

This suggests a further problem for the reconciliation approach, raised by Adam Jentelson: McConnell almost certainly does not want a default. (His base of wealthy contributors certainly does not want a default, which would wreck their holdings). But at this point he cannot prevent the members of his caucus from dragging out the process and producing a default by accident. Even if most of the Republican Senators promise to behave themselves, a few will want to grandstand, and gum up the works. 

So McConnell is, in effect, leaving open only a few options--of which one is carving out debt-ceiling votes from the filibuster.  McConnell probably does not want to do this, but it may be a consequence of current politics and his inability to control his caucus.

Once that happens, it opens up further possibilities for scaling back the filibuster. If you remove the filibuster for votes on the debt ceiling, why not for voting rights bills as well? Why not for "constitutional issues" generally? And so on and so on. The Senate has carved away slices of the filibuster twice in the last decade-- once to exempt most executive and lower federal court appointments, then again to exempt Supreme Court appointments. If the Senate now removes votes on the debt ceiling from the filibuster rule, it will be easier for the Senate to make further excisions in the future.

That is what supporters of the filibuster dread. Yet, in a sense, it is the logical outcome of a world in which politicians routinely invoke the filibuster. Because the weapon is so powerful in a highly polarized political environment, it will eventually get in the way of too many people's political interests, and it will be used too irresponsibly and dangerously. At some point, the Senate will eliminate it, in small ways at first, and then in larger chunks.

Make no mistake: a world without a Senate filibuster would not be an ideal world, but it would significantly change the incentives of national politicians, sometimes in obvious ways, and sometimes in more subtle ways. It would be a significant constitutional (with a small "c") change.

There are other possibilities for dealing with the debt ceiling, of course. The president might interpret the Fourteenth Amendment and the Antideficiency Act to buy a little time, but this is not a long-term solution. The Mint might produce a couple of trillion dollar coins, but this too, would not stop the incentives for hostage taking.

There are many clever ways to wriggle out of the current mess. But the most direct and sensible approach is to eliminate the filibuster for votes on the debt ceiling, and then pass one of the following bills: (1) repeal the debt ceiling outright; or (2) provide that the debt ceiling shall automatically be raised whenever Congress appropriates new funds for expenditures; or (3) suspend the debt ceiling until January 1, 3021 or some other far distant time; or (4) raise the debt ceiling to an amount equal to 1000 times the  Gross National Product of the United States, as measured at the end of each fiscal year.

No doubt one could come up with many more solutions, but the general idea behind all of them is this: get rid of the debt ceiling, or end politicians' ability to use it for political hostage taking.

Will the Senate end the filibuster for debt-ceiling votes? We'll find out fairly soon. 

Balkinization Symposium on Dixon and Landau, Abusive Constitutional Borrowing-- Collected Posts

JB

Here are the collected posts on our Balkinization symposium on Rosalind Dixon and David Landau's new book, Abusive Constitutional Borrowing: Legal globalization and the subversion of liberal democracy (Oxford University Press, 2021).

1. Jack Balkin, Introduction to the Symposium

2. Samuel Issacharoff, Domesticating Constitutionalism

3. Alvin Y.H. Cheung, Beyond Comparative Constitutionalism: Abusive Legal Borrowing

4. Kim Lane Scheppele, On New Autocrats, Imitation and Flattery

5. Oren Tamir, Can Abusive Borrowing Itself Be Abusive?

6. Rosalind Dixon and David Landau, The Importance of Abusive Constitutional Borrowing: A Reply to Commentators

Section 4 of the Fourteenth Amendment and Departmentalism

Gerard N. Magliocca

First I want to concur with Jack's post below. But then I want to provide a link to this new Washington Post article, which implies that the Administration thinks that it can do nothing if Congress fails to raise the debt ceiling. I grant that this position may be little more than an attempt to pressure Congress to do its job, but let's probe a bit deeper.

One way of understanding Congress's failure to raise the debt ceiling or provide for another way to pay for our outstanding obligations is that they do not think that this inaction violates the Fourteenth Amendment. You can plausibly defend that view, although I think it's incorrect. The President, however, can reach the opposite constitutional conclusion and decide that the proper response is to prioritize paying bondholders. Perhaps there is not enough money in the till to pay them off fully, but Perry suggests that so long as they are substantially repaid there is no constitutional problem, as opposed to a financial problem. Besides, the President's action can be challenged in court by those who (presumably) are getting stiffed by Uncle Sam. 

I also must say that I did not understand what the unnamed source in the article means by saying that the President cannot act unilaterally if Congress fails to act because that would be devastating to the country. It would be devastating to the country to stop the country from being devastated?  

Where is it safe to eat

Ian Ayres

Ian Ayres & Eni Iljazi

When businesses started opening their doors again as Coronavirus restrictions eased, a flurry of customers often found themselves standing in front of locked doors. A lot of restaurants and other retailers have either not survived the pandemic or had to curtail their operating hours. Several times we have returned to a favorite store only to find it closed.  

Google has helped. They stayed up to date with whether businesses were open and their hours of operation, and they let us know if a restaurant offered outdoor dining or curbside pick-up. 

 In part, Google has been able to do this because of its cutting-edge AI technology called Duplex (demoed in 2018). Duplex bots - which sound amazingly human -- can call businesses to find out whether they offer curbside pick-up or whether they have special Labor Day hours. Then Google includes this information in their Google Maps and Search results. When Duplex first rolled out, many retailers didn't even realize that they were speaking with a bot. (Google later updated Duplex to mention during the conversation that it was an automated service calling.) 

This automated calling not only helps customers, it also cuts down the hassle to retailers.  Restaurants or other establishments only have to answer one call instead of hundreds pouring in from individual customers. 

Google should go further. It should help customers learn about retailers’ policies on vaccines. Just as it added information on curbside pickup to its search results, it should use Duplex to gather information on whether an establishment’s employees are vaccinated and whether customers are required to prove that they are vaccinated. 

Google search results already helpfully include “health and safety” information – including whether staff and customers have to wear masks. But they don’t provide information on whether staff and customers are vaccinated. You’d have to call Spago (as we did) to learn that it doesn’t require its staff to be vaccinated.

Google should also add vaccination filters to their search options. In Google Maps, you can easily filter your restaurant search to just show you Thai restaurants. But you can’t look for restaurants that have vaccinated staff. 

We know that such filters are possible, because they already exist on Yelp. But Yelp requires businesses to log in and manually add this information to their page. A local Branford restaurant, Genaro’s Pizza, requires its employees to be vaccinated but you wouldn’t learn this from their Yelp page. Google has a much broader market reach, and its bots can do the heavy lifting collecting the vaccine policy information. 

Providing vaccine information helps create an associational marketplace, where people with compatible preferences can find each other and make informed associational choices. Google can help Americans exercise a different kind of dimension of freedom. You might be free not to be vaccinated, but I should be free not to unknowingly spend time with you.

A lot of customers want (or should want) to know about whether staff and other customers are vaccinated. Unvaccinated people are 4 times more likely to contract COVID. Patronizing fully vaccinated venues lowers your chances of getting sick. It can be uncomfortable to ask your server if they are vaccinated. Most people would prefer to find out in advance before they get in their car.

The Biden administration has been meeting with businesses urging them to mandate employee vaccines. But one of the impediments to businesses adopting vaccine mandates is that it is hard for consumers to learn and shift their business toward safer establishments. Google can help change that.

Of course, an associational marketplace might in some cases lead to perverse results. Some anti-vaxxers might choose to boycott businesses that enforce public safety measures. But buycotts tend to be much more economically powerful than boycotts. Imagine, for example, that just 10% of consumers care deeply about wanting to patronize establishments that require staff vaccinations, and bizarrely, that 20% prefer going to businesses with unvaccinated employees, with the remaining 70% not caring one way or the other. Even stacking the preferences against buycotts, we might expect that 3 out of 10 firms could profitably require vaccine mandates.

Moreover, Google could tailor its filters to disable unwanted association. For example, the Association of American Law Schools each year curates an online database of people looking for law teaching jobs. In the past, the database tool allowed potential employers to search for minority candidates who are interested in teaching torts but did not allow searches just for white candidates. [We were surprised to see that “white-only” searches are now allowed.] The google filter might analogously let customers search for businesses that require customer or staff vaccines but remove that option for businesses with more dangerous policies.

Channeling patrons’ natural desire to consume safely can be a powerful tool in our efforts to vaccinate. But consumers need ready access to information to make informed choices. With Google’s help that information can literally be at our fingertips.

Why the debt ceiling is constitutional (and what to do about it)

JB

I recently noticed that the Stanford law website and this Vox article on which it is based assert that I believe that the current debt ceiling law violates the Constitution and that the president can simply ignore it. 

This is false. [Update-- Vox has now corrected its article.]

The two stories link to an Atlantic article I wrote in 2012 that actually takes the opposite position:

If Congressional Republicans are threatening to let the nation to default on its debts if [the president] doesn't agree to their demands, they are violating the Constitution.  And the president should call them out for such an outrageous demand. But does that mean that the president can raise the debt ceiling himself to remedy the violation?

Not so fast. Article I, section 8 of the Constitution gives Congress, not the president, the authority to borrow on the credit of the United States. Even so, under section 4 of the Fourteenth Amendment the president has an independent constitutional obligation not to allow the validity of the debt of the United States to be put into question. That means, at the very least, that the president must make sure that interest payments continue on existing federal bonds and similar obligations.  He must assure bondholders that they will continue to get paid even after the debt ceiling is reached. ...

The president's obligation to pay the bondholders first-- and not the power to ignore the debt ceiling--is how the Fourteenth Amendment helps the president resolve any debt ceiling crisis. All he has to do is follow the Constitution and he will come out on top. He doesn't have to raise the debt limit at all.  Instead, he must calmly explain to Republicans in advance what he will do -- and not do -- if they remain intransigent. He must explain to them that their course of action will inevitably lead to a government shutdown, and that the shutdown -- and its associated costs to the country -- will be on their heads.

I should add that it may not be possible for the Treasury Department easily to pay only the bondholders. My understanding is that many government payments these days are automated and it may be difficult to reprogram the systems in time to do this. But whoever gets paid, the bondholders must be included.

As soon as Treasury's extraordinary measures are exhausted, the government will have to shut down as many operations as needed to keep interest payments to bondholders flowing, as required by the Fourteenth Amendment. At that point, however, we will be in the middle of a global economic meltdown, which will put irresistible pressure on Congress to raise (or suspend) the debt ceiling once again. All that will have been gained from the disaster is loss of confidence in the United States and in the reliability of its financial obligations.

Yes, it's possible that if several weeks go by, and Congress still hasn't acted, the President might instruct the Treasury to borrow more money on an emergency basis as the least unconstitutional course of action. But there is no guarantee that the markets will accept the new bonds as valid, and in any case, the scenario is pure fantasy: Congress will act as soon as the markets crash, just as they did in 2008 in during the global financial crisis. The impending death of global capitalism will concentrate their minds.

The best solution, of course, is simply to repeal the debt ceiling so that it can no longer be used for hostage taking. But the debt ceiling law itself is constitutional. There are many stupid laws that are constitutional. The debt ceiling is one of them.

The Importance of Abusive Constitutional Borrowing: A Reply to Commentators

Guest Blogger

For the Balkinization symposium on Rosalind Dixon and David Landau, Abusive Constitutional Borrowing: Legal globalization and the subversion of liberal democracy (Oxford University Press, 2021).

Rosalind Dixon and David Landau

We are deeply grateful to Kim Lane Scheppele, Oren Tamir, Sam Issacharoff, and Alvin Cheung for so generously and carefully engaging with our work, both at an earlier event at ICON-S and in Balkinization. We are humbled that our work is being read by such a distinguished group of commentators, as well as by the wide-ranging discussion our work has sparked.

The core contribution of Abusive Constitutional Borrowing is to demonstrate the many ways that authoritarians and would-be authoritarians can wield the core designs, concepts, and doctrines of liberal democratic constitutionalism to instead undermine democratic constitutionalism. The very tools used to protect and promote democratic constitutionalism are often turned into potent weapons to attack it. Perhaps the most important audience for our book, then, is the comparative constitutional law community itself, as well as adjacent communities like those found in international law and international human rights. We intend our book as something of a warning about a dark side of our fields, and as a call not to curtail efforts to promote liberal democratic constitutionalism, but instead to redouble efforts in a way that is more sensitive to the risks of abuse. For example, because many concepts intended to promote liberal democracy can in fact be repurposed to attack it, scholars and constitutional policymakers must be more alive to these risks. The possibility of abuse is sometimes quite substantial. While no norm can be fully insured against the risk of abuse, we do think that the community involved in developing and promoting liberal democratic norms could often do a better job of “abuse proofing” designs, concepts, and doctrines.

To substantiate our claim, we draw on examples from the heartland of liberal democracy. We devote chapters to rights and courts, perhaps its main instantiations. We show for example how courts have used militant democracy ideas to ban parties for antidemocratic ends in contexts like Cambodia and Thailand, how the Supreme Court nullified the power of an opposition-held legislature in Venezuela, and how gender quotas and hate speech norms have helped to bolster Kagame’s authoritarian regime in Rwanda. We also have a chapter on constituent power, arguably the theoretical underpinning of modern constitutionalism. Here, for example, we study the use of a doctrine of unconstitutional constitutional amendment to eliminate presidential term limits by would-be autocrats, in a line of reasoning that has run through countries such as Bolivia, Honduras, and Nicaragua in Latin America. Finally, we look at recent attempts to abuse political constitutionalism and weak forms of judicial review, ranging from Hungary and Poland in Eastern Europe to Israel.

Section Four as an Anti-Default Rule

Gerard N. Magliocca

Here's another way to think about Section Four of the Fourteenth Amendment. The text, as read by the plurality opinion in Perry v. United States, denies to Congress or to the Treasury the power to default on our national bonds. What, though, does a "default" mean? It does not mean any haircut that bondholders might take. At some point a partial repudiation would constitute a default, but I'm not sure at what point.

Stepping back for a moment, you could argue that the President should invoke Section Four simply to create a case on the question of whether Congress can constitutionally impose a debt ceiling that would cause a default. (The debt ceiling itself is not the problem, as a hypothetical Congress could say the United States would adopt a pay-as-you-go model for paying off old debt.) The problem (and not a small one) is that any borrowing while such a case is pending would be legally uncertain. 

Can Abusive Borrowing Itself Be Abusive?

Guest Blogger

For the Balkinization symposium on Rosalind Dixon and David Landau, Abusive Constitutional Borrowing: Legal globalization and the subversion of liberal democracy (Oxford University Press, 2021).

 Oren Tamir

Professors Rosalind Dixon & David Landau’s book Abusive Constitutional Borrowing: Legal Globalization and the Subversion of Liberal Democracy is terrific, and I expect it to quickly become a central—perhaps THE central—reference point for research on the topic of what we have come to call, among many other available labels, “constitutional retrogression” or “democratic backsliding.” That the book is so great and insightful, and a pleasure to read on top of that, is absolutely no surprise given the identity of its authors. Indeed, no one who works in the field of comparative constitutional law (or, perhaps better, comparative constitutional studies) could miss Dixon & Landau’s extensive and consistently excellent work, both individually and as co-authors. I personally find myself regularly going back to Dixon & Landau’s impressive corpus of work, which would now include Abusive Constitutional Borrowing, for clarity, insight, and inspiration. And I should take the opportunity presented by this symposium to say that I’m immensely grateful for the leadership role that Dixon & Landau take in the community of comparative constitutional law/studies, and especially their interest in, and willingness to engage with, those of us who are beginning to chart our own path in the field.

I take Abusive Constitutional Borrowing to be making two primary contributions to the study of the phenomenon of democratic backsliding or constitutional retrogression. The first contribution is what I think of as identifying the target of concern in discussions of this topic and, importantly, significantly narrowing it down. Dixon & Landau argue here that we should get worried when, and only when, what they call the “minimum core” of constitutional democracy is under real strain. This is essentially the adoption, as Dixon & Landau suitably acknowledge, of a rather “thin” (even if not an extremely thin) definition of constitutional democracy as the relevant target. That definition includes regular, free, and fair multi-party elections, political rights and freedoms for all citizens, and a set of institutional checks and balances. And it leaves outside the scope of discussion in the context of constitutional retrogression or democratic backsliding “thicker” conceptions of what constitutional democracy might be thought to entail, and particularly conceptions that incorporate various “goods” associated with liberal constitutional democracy (including the rule of law as well as individual rights to freedom, dignity, and equality beyond the political sphere).

The book’s second contribution—and the one that gets most of the explicit focus in it (and of course give it its title)—is not about the target of concern but the technologies through which our concerns might become realized. Here Dixon & Landau tell us (building on their own previous work as well on crucial work by another leader in the field of comparative constitutional law/studies, and a co-participant in this book symposium, Professor Kim Lane Scheppele) that a key way that the “minimum core” of constitutional democracy is indeed being jeopardized, and constitutional retrogression or democratic backsliding occurs, is through a specific method: that of abusive constitutional borrowing. In Dixon & Landau’s overarching narrative, our time has witnessed the appearance of many ambitious, would-be autocrats around the world who are plausibly understood as interested in dramatically diminishing the “minimum core” of constitutional democracy and causing constitutional retrogression or democratic backsliding. But to do that, these would-be autocrats need not explicitly and transparently work outside of the canon of constitutional democracy. Rather, they can do so from within, by strategically appropriating the designs, concepts, and doctrines of constitutional democracy itself to advance their desired authoritarian projects. On the surface, these would-be autocrats certainly seem to talk the talk of constitutional democracy. Once we drill down below the surface level, though, we realize that they are far from willing to walk the walk of constitutional democracy. Their use of these concepts, designs, and doctrines is extremely shallow. As Dixon & Landau say, sometimes it’s pure sham. Sometimes it’s selective and acontextual. And sometimes it’s “anti-purposive.”

On New Autocrats, Imitation and Flattery

Guest Blogger

 For the Balkinization symposium on Rosalind Dixon and David Landau, Abusive Constitutional Borrowing: Legal globalization and the subversion of liberal democracy (Oxford University Press, 2021).

Kim Lane Scheppele

            Oscar Wilde could well have been talking about a new generation of autocrats when he penned the aphorism that “imitation is the sincerest form of flattery.”  

Earlier generations of dictators toppled constitutional-democratic governments by ordering tanks into the streets.   But coups are largely a thing of the past.   The new generation of autocrats topples constitutional-democratic governments by ordering lawyers into action to write copycat constitutions and copycat legislation designed to subvert the rule of law.   By imitating liberal constitutionalism (even as they are undermining it), the new autocrats indirectly acknowledge that “[liberal] democracy is the only game in town.”   They wouldn’t do what they do if they didn’t recognize the normative power of the model that they mimic.    

New autocrats aim not at revolution through force but at subversion through mimicry.  

            Abusive Constitutional Borrowing by Rosalind Dixon and David Landau documents the rise of autocratic legalism by showing how new autocrats now “borrow” constitutional ideas and structures from “good” constitutional systems in order to use them in “bad” ways (hence the “abuse”).    From Venezuela to Poland, from Rwanda to Thailand, from Hungary to Ecuador, from Fiji to Israel, the pattern is clear.   Aspirational autocrats win elections – often freely and fairly the first time – and then set about to destroy the bases of constitutional democracy that allowed them to come to power in the first place.    As these autocrats dismantle constitutional democracy, however, they take pains to keep up appearances, which masks to both domestic democratic publics and international observers what is really going on.  By the time that constitutional democracy is fatally wounded, it is often too late to revive it. 

            Dixon and Landau build their powerful argument by developing a normative model against which to test the transformations they document.   They identify a “minimum core” of constitutional democracy that includes regular, free and competitive elections; respect for basic rights and freedoms; and the protection of the institutions that guarantee both.  Then they assess the changes that they document against that framework.  Their model is elegant, helpful and admirably neutral among different forms of liberal constitutional order.  For example, they don’t give pride of place to “free speech” as American analyses often do, nor do they check for “separation of powers” which can often be rather hard to identify in parliamentary systems.   Their thin theory of constitutional democracy provides a clear anchor for their idea of “abuse.”  In their framework, constitutional-democratic norms used to undermine constitutional democracy are deployed “abusively.”

Beyond Comparative Constitutionalism: Abusive Legal Borrowing

Guest Blogger

For the Balkinization symposium on Rosalind Dixon and David Landau, Abusive Constitutional Borrowing: Legal globalization and the subversion of liberal democracy (Oxford University Press, 2021).

 Alvin Y.H. Cheung

The street finds its own uses for things.

- William Gibson, Burning Chrome

There is broad consensus that liberal democracy is in retreat, despite the spread and apparent triumph of liberal democratic institutions and ideas in the late 20^th Century.  Professors Dixon and Landau turn this proposition on its head: they argue that autocrats are increasingly adopting ideas and institutions of liberal democratic origin and deploying them in anti-democratic ways.  Abusive Constitutional Borrowing provides a careful, systematic articulation of that argument, and offers some promising (if slightly tentative) suggestions on what to do about it.  The true value of the book, however, is far greater: the sceptical approach Landau and Dixon adopt towards constitutional borrowing can be fruitfully applied outside the realm of constitutions and constituionalism.

Although the entirety of Abusive Constitutional Borrowing merits careful reading, I shall focus on two aspects of the book that deserve particular mention.  First, the book persuasively lays out a framework for thinking about different types of abusive constitutional borrowing, centred on a “democratic minimum core.”  In the context of rule of law indices, Mila Versteeg and Tom Ginsburg’s study suggests that a major failing of such indices is that their conception of the rule of law overlaps with other factors, such as human rights and the absence of corruption.  A relatively parsimonious conception of democracy – a set of factors that are necessary (if perhaps not sufficient) for democracies to function – will be more robust, or at least more likely to attract consensus, than an everything-but-the-kitchen-sink account.

Second, Abusive Constitutional Borrowing advocates a more critical approach to the practice of comparative constitutional law, an approach Dixon and Landau refer to as “global legal realism.”  Abusive practices, they argue, take advantage of the formalist and acontextual approach that continues to dominate the transnational rule-of-law industry – an approach that Kim Lane Scheppele has called a “checklist” approach.  Any effective response to abusive constitutional borrowing will therefore have to be more sensitive to context – both in terms of how discrete norms are implemented, and how they function as part of a legal system.  Put more bluntly, practitioners of comparative constitutionalism must learn to think like autocrats.  This practice of adversarial thinking – referred to in information security as “red teaming” – is an accepted part of building computer infrastructure; Abusive Constitutional Borrowing suggests that it should also be adopted in developing constitutional infrastructure.

I now turn to consider the subtitle, “Legal Globalization and the Subversion of Liberal Democracy.”  The phenomena that Dixon and Landau highlight in their introductory chapter have led not only to a transnational constitutional order, but to a “transnational legal order” (p 1, emphasis mine).  As Dixon and Landau argue, that transnational legal order has inspired creative anti-democratic behaviour.  However, that creativity has not been confined to abusive constitutional borrowing.

Three examples may help illustrate the point.  First, the use of defamation litigation against government critics – a practice commonly associated with Singapore – has spread to other semi-autocracies; in recent years Poland and Brazil have the tactic against (among others) Professors Wojciech Sadurski and Conrado Hübner Mendes, respectively.  Second, most of the media and electoral reforms in Hungary that Scheppele documents in “The Rule of Law and the Frankenstate” did not involve changes to the constitution.  In particular, her account of the creation of a new media regulator with superficial similarities to media councils elsewhere in Europe demonstrates that wilfully perverse transplantation is not confined to constitutional norms or institutions.  Third, the mere fact that China’s Anti-Monopoly Law (“AML”) was modelled on European or American legislation offers no insight into how the AML regime actually operates.  As Angela Zhang has argued in Chinese Antitrust Exceptionalism, the PRC’s radically different institutional and bureaucratic context has resulted in a very different system – one that Beijing has used to further its own geopolitical objectives.

This type of abusive legal borrowing may well be even more pernicious than abusive constitutional borrowing (an argument I develop at greater length in my forthcoming article Legal Gaslighting).  First, the presence of constitutional change is likely to attract attention in a way that the alteration of (for instance) criteria for company registration might not.  Second, the purpose of constitutional amendments is harder to disguise than amendments to “ordinary” law.  Third, changes to “ordinary” law have the potential to affect many more interactions between citizens and the State; to return to the example of companies registration, the political capture of Hong Kong’s Companies Registry (prior to Beijing’s imposition of the “National Security Law” in 2020) had the practical effect of impeding opposition parties’ ability to open bank accounts or rent office premises.

The true value of Abusive Constitutional Borrowing does not lie merely in the light it sheds on abusive constitutional borrowing.  As the examples above suggest, sophisticated autocrats are increasingly supplementing, if not replacing, abusive constitutional borrowing with other forms of abusive legal borrowing.  Nonetheless, the latter relies on the same transnational blind spots of formalism and acontextualism that has empowered the former, and Abusive Constitutional Borrowing provides a vocabulary and analytical approach that can be applied to both.  As such, the book is an important contribution not only to comparative constitutional law, but to the nascent field of comparative public law.

Alvin Y.H. Cheung (alvin.cheung@law.nyu.edu) is a SSHRC Postdoctoral Fellow at McGill University Faculty of Law and a Non-Resident Affiliate of NYU’s US-Asia Law Institute.

What Are the Options on the Debt Limit?

David Super

     The media is starting to pay more attention to looming fiscal deadlines.  Much of the coverage, however, takes what the congressional leaders say at face value.  That is rarely a good plan.  This post seeks to untangle the options available to each side under congressional procedure. 

     To begin with, we should be clear what major fiscal items are on Congress’s agenda.  At the moment, these number four.  First, with no appropriations bills enacted for the fiscal year beginning October 1, a continuing resolution (CR) will be needed to prevent a partial government shutdown.  Second, the Treasury has reported that it will exhaust available accounting tricks to stay within the statutory debt limit by late October; the debt limit therefore must be raised or suspended to prevent the United States Government from defaulting on its legal obligations.  Third, the bipartisan infrastructure bill passed by the Senate awaits action in the House.  Finally, Democrats have begun committee work in the House to advance a budget reconciliation bill to “Build Back Better” by making investments in human infrastructure and reducing carbon emissions.  Neither of these final two items have legal deadlines, although political windows of opportunity can close quickly in this town. 

     The Democratic leadership combined the first two items, putting a debt limit measure in the continuing resolution to keep the government funded following October 1.  Attaching debt limit increases to must-pass legislation such as a CR has been a relatively common approach by both parties in the past.  Although increasing the debt limit does not drive increases in the deficit – that is done by substantive tax and spending bills – it commonly gets misunderstood by the public and demagogued by some in the media.  In a new twist, some Republicans a few years ago started suggesting they would be happy to have the country breach the debt limit, presumably to grab headlines and demonstrate their independence from the financial elites that warn of the consequences of default.  Since the debt limit has become so intensely politicized, even Members that understand its importance have preferred not to vote for freestanding debt limit legislation. 

     House Republicans voted en masse against the CR/debt limit bill, leaving Democrats to pass it on their own.  They did. 

     More significantly, Senate Republican Leader Mitch McConnell (R-KY) has insisted that Democrats must pass any debt limit increase without any Republican votes.  Senator McConnell agrees that the debt limit should pass, but he insists no Republican votes will be available to do so.  He claims that this is the Democrats’ responsibility as the de facto majority party. 

     Senator McConnell’s insistence that majority party must provide all the votes to pass debt limit increases has no plausible basis in history.  Democrats have routinely cooperated in raising the debt limit when Republicans were in power.  This has been true even after deeply partisan upper-income or corporate tax cuts passed over their objections and swelled the deficit to make increases in the debt limit urgent.  Indeed, had Democrats adopted Senator McConnell’s policy, the nation might well have defaulted as some congressional Republicans (e.g., much of the Freedom Caucus) consistently refuse to vote for debt limit increases.  And with their commitment to preventing a default so clear, Democrats recognized that debt limit legislation gave them no bargaining leverage and have not sought to extract significant concessions in exchange for their votes on the debt limit.  By contrast, in 2011 Republican threats not to raise the debt limit – when they held the majority in the House – bludgeoned President Obama into agreeing to the deep budget cuts that culminated in sequestration. 

     Nor is the need for this increase in the debt limit solely attributable to Democrats.  Over the past four years, the deficit and the national debt have been increased substantially by Republican legislation (the 2017 tax cuts), by Democratic legislation (the American Rescue Plan Act), and by bipartisan legislation (last year’s several major coronavirus relief bills).

     Although Senator McConnell’s position has no serious historical support, senators are not bound by history.  And with the Democrats consistently opposed to threatening default, he has no reason to worry about similar tactics being used on him should he return to the majority after the mid-term elections.  So Democrats must decide what to do about Senator McConnell’s position. 

     Democrats have a few choices.  The simplest is to bring the legislation that passed the House to the floor of the Senate.  If Republicans do not filibuster, Democrats can pass it without a single Republican vote.  That would meet Senator McConnell’s stated requirement. 

     Senator Ted Cruz (R-TX), however, seems likely to filibuster such legislation.  Overcoming that filibuster and bringing the CR/debt limit bill to a vote would then require sixty votes.  Senator McConnell could allow ten of his senators to vote to invoke cloture (cutting off the filibuster) and then have all Republicans vote against final passage of the CR/debt limit bill.  This, too, would seem to meet Senator McConnell’s requirement that the legislation be passed entirely with Democratic votes.  The ten Republicans voting for cloture would not be voting to raise the debt limit; they would be voting to prevent a senator of their own party from preventing the Democrats from doing what Senator McConnell has said he wants them to do:  pass the CR/debt limit bill with their own votes. 

     If Republicans actively obstruct passage of the CR/debt limit legislation, Democrats will have to decide between moving a freestanding CR (which Senator McConnell has indicated Republicans would not obstruct) and allowing a partial government shutdown.  Because padlocked national parks are far more salient to the average voter than is anxiety in the financial markets, Democrats may feel that this is a more suitable place to draw a line in the sand to get Republicans to abandon their filibuster. 

     If Republicans succeed in blocking a debt limit increase or suspension as part of the CR – either by forcing a partial government shutdown or by coercing Democrats into moving a CR that does not address the debt limit – Democrats could, in theory, move a debt limit increase through “budget reconciliation” procedures, which bar filibusters.  This appears to be what Senator McConnell is trying to force them to do.  It is not nearly as simple as it sounds.

     The content of a reconciliation bill is dictated by the terms of the concurrent resolution on the budget for the fiscal year in question.  The Democrats passed – on a party lines vote – a budget resolution to allow the Build Back Better legislation to move through reconciliation procedures.  Because they were planning to move the debt limit increase on the CR, however, they put nothing in the budget resolution authorizing a reconciliation bill to raise the debt limit. 

     In order to move a debt limit increase through expedited reconciliation procedures, Democrats therefore would likely have to pass an amended version of the budget resolution that included instructions to raise the debt limit.  This they can do, but it would involve several steps, each of which offers Republicans considerable opportunities for obstruction and delay.  Senator McConnell, if he so chose, could expedite the process by declining to object to the Democrats’ moving a debt limit reconciliation bill without a reconciliation instruction authorizing them to do so.  He could still have all Republicans vote against that bill – fulfilling his stated requirement – but reduce uncertainty in the financial markets by allowing the debt limit to be raised more expeditiously. 

     If their current divisions are any indication, the Democrats might not have their Build Back Better reconciliation bill ready to pass before the need to raise the debt limit becomes critical.  This will not be fatal.  Section 310 of the Congressional Budget Act permits separate reconciliation bills to change spending, to change revenues, and to increase the debt limit.  The first two typically are combined – and will be in the Build Back Better reconciliation bill – but the Democrats could move a separate reconciliation bill containing only the debt limit increase.  Of course, doing so would require Democrats to vote on a stand-alone debt limit bill, something Members of both parties have long been loathe to do (and generally shielded from doing by the leaders of both parties). 

     If a miscalculation in this game of Fiscal Chicken exhausts the Treasury’s ability to operate within the existing debt limit, President Biden would have several options.  One would be to determine that section 4 of the Fourteenth Amendment makes the debt limit unenforceable when it states that “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.”  President Obama considered and rejected this approach in 2011, but President Biden has already broken with his former boss in several important respects.  If President Biden did so, it is unclear who, if anyone, would have standing to challenge his actions.  The Supreme Court seems unlikely to intervene to cause an immediate default; after all, the Court has lately expressed reluctance to take cases “present[ing] complex and novel antecedent procedural questions”.

     A final note:  although the debt limit increase could move on its own, as part of the CR, or as part of reconciliation, the CR and reconciliation cannot be combined.  The Byrd Rule limits spending provisions in reconciliation bills to those that would change mandatory (commonly termed “entitlement”) spending.  The appropriations needed to keep the government operating that will be in the CR are overwhelmingly discretionary (non-entitlement) spending and hence impermissible on a reconciliation bill.  Congress cannot pass one big “budget bill” combining all these measures.

     @DavidASuper1