an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
In my last post, I compared the problems facing the Administration to two other constitutional struggles, Lincoln's suspension of habeas corpus in 1861 and Truman's seizure of the steel mills in 1952, both involving presidential action in time of war.
In fact, in many respects the constitutional analysis of section 4 of the Fourteenth Amendment is similar to the constitutional debate over war powers. The question in both cases is when the President can act unilaterally without Congressional approval. In the war powers debate, Congress has the power to declare war and raise money for war; in the debt ceiling debate, Congress has the power to appropriate new funds and authorize new borrowing. In both cases we must ask whether the President's action is authorized by Congress (in which case the President's power is at its height), whether it is in defiance of Congress (in which case the President's power is at its "lowest ebb"), or whether it exists in a "twilight zone" where Congress has not clearly spoken (These categories are drawn from Justice Jackson's famous concurrence in Youngstown Sheet & Tube Co. v. Sawyer, the Steel Seizure Case).
Because the structure of the issues in both situations is so similar, we should be very reluctant to give the president unilateral authority to enforce section 4 through issuing new debt in open defiance of Congress unless there is absolutely no other alternative to avoiding financial Armageddon. Indeed, the President has a stronger argument for unilateral action in the war powers debate than he does in the section 4 debate, because it has been widely accepted that presidents can use military force in very minor operations without even a showing of an emergency. (To be sure, Congress can limit such operations by statute, and the War Powers Resolution further limits operations that involve "hostilities.") By contrast, I've argued that the President's powers to issue new debt in a crisis should be activated in only in emergency conditions and only after exhausting all other reasonable methods to preserve the validity of the public debt.
In today's Washington Post, Larry Chapman notes that, if pressed, Obama might simply invoke the April agreement to fund the government through the end of the current fiscal year (i.e., September 30) and argue that this implicitly gives him authority to issue new debt, because the two laws are in conflict and the later law (the April authorization) supersedes the earlier law (the debt ceiling limit). (This would put us in Youngstown box 1-- the President acts with authorization, so his power is at its greatest.).
This is a clever solution, although it only takes us up to September 30th. And it has a few problems, which I'll discuss in a moment. My reason for mentioning it that this argument essentially recapitulates the Clinton Administration's constitutional defense of the Kosovo operation in 1999. The Republican-controlled Congress did not want to authorize the President's Kosovo intervention and the War Powers 60 day limit ran out. So the Clinton Justice Department argued that an appropriation of money for the Kosovo operation was equivalent to an explicit authorization.
The analogous argument in the debt ceiling debate interprets the April continuing authorization to also authorize extending the debt limit. This is tricky because there is very strong evidence that this was not Congress's intent, and nobody in the debates believed that they were raising the debt limit. In addition, if the argument works, then separate legislation creating a debt limit is almost always superfluous, because Presidents can usually interpret the last appropriation as authorization to borrow money above the debt limit and issue new debt as they need it; moreover, they can do so even if there is no emergency! Whether or not this is good public policy, it's not consistent with what we know about congressional intent.
Another example of how this sort of strategy can create problems is President Bush's secret terrorist surveillance program, which went around the legal requirements of the Foreign Intelligence Surveillance Act (FISA). The unilateralist theory was that the President had inherent authority under Article II to engage in surveillance despite FISA's limitation, and that to the extent that FISA conflicted with this inherent authority, FISA was unconstitutional. But the other, more sophisticated theory was that the September 18, 2001 Authorization for the Use of Military Force (AUMF) had authorized the President to go beyond the limitations of FISA.
I always thought that this second argument was quite a stretch, because FISA is a specific statute devoted to intelligence surveillance and the AUMF says nothing about surveillance. Even so, this example shows you that if you allow the executive to read statutes with sufficient creativity, the President's lawyers can often come up with arguments for why Congress has already authorized what the President wants to do unilaterally. (And thus, under the Youngstown analysis, the President is in the strongest possible position). The FISA controversy was largely mooted when Congress passed the Protect America Act of 2007 and the FISA Amendments Act of 2008, thus authorizing a new class of surveillance programs. This was an authorization of broad new executive powers to engage in surveillance, and the practical effect was to authorize much of what the Bush Administration had already been doing.