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
Imaginative Constitutional Histories, Executive Unilateralism, and the Debt Ceiling
In the New York Times yesterday, Professors Eric Posner and Adrian Vermeule argue that if the President and Congress cannot agree upon legislation that will avoid largescale default on the debt, the President can and should "raise the debt ceiling unilaterally," presumably by creating new "obligations" (i.e., borrowing funds) beyond the limit that section 3101 of title 31 currently sets. They do not, however, argue that the President has the constitutional authority to do so by virtue of the Fourteenth Amendment, a possibility that has been the subject of many posts by Jack, Larry Tribe, Neil Buchanan and Mike Dorf, here and on Mike's blog -- and a constitutional argument that the President himself appeared to reject yesterday. Indeed, it's not obvious that Eric and Adrian think that default would result in a Fourteenth Amendment violation at all, or that they care about that question in the slightest -- their argument is, instead, that the President can take such unilateral action in violation of statute even if the default would not be unconstitutional.
"The 14th Amendment," they write, "is a red herring": the President could unilaterally incur further debt "even if its debt provision did not exist."
What's their theory for such a striking unilateral Executive power? It's this: "[T]he president would derive authority [to borrow in violation of the law] from his paramount duty to ward off serious threats to the constitutional and economic system." The "serious threat" in question here would be the risk that the nation would be thrown "back into recession." (It's worth noting, in passing, that it's not at all obvious that P&V's suggestion wouldn't exacerbate the "serious threat"--is it really plausible, for instance, that other nations would lend us trillions of dollars on the President's say-so that he has some unilateral authority to incur such debts even when barred by statute, and his assurances that the U.S. will repay such debts in the teeth of congressional opposition and the furor that would result if the President so acted? For purposes of this post, however, I'll assume the counterfactual that Eric and Adrian's proposed course of action would, in fact, avert the "serious threat to the economic order.")
The Constitution does not, of course, mention or imply any such "paramount duty" of the President to violate statutes in order to "ward off recession or other serious threats." So what is Posner and Vermeule's authority for such a duty? Perhaps there is some historical support for it.
Eric and Adrian assure us that there is -- indeed, they invoke authorities no less august than Lincoln and FDR.
Just because our greatest Presidents did something doesn't make it constitutional, of course. But if Lincoln and FDR both acted upon, or even claimed, a particular constitutional authority, it stands to reason we should consider it seriously, at a minimum.
So, do Posner and Vermeule's historical examples provide the support they need? As for Lincoln, they naturally point to his message to Congress on July 4, 1861, in which he famously asked the rhetorical question: "Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated?" Posner and Vermeule insinuate that Lincoln used this rationale as justification for his earlier suspension of the writ of habeas corpus while Congress was in recess -- the only example they cite in our history where a President has allegedly exercised the unilateral power they now urge President Obama to use. There are at least two problems with that suggestion, however:
First, Lincoln did not justify his suspension of habeas on the basis of any such "nonexecution" prerogative. Instead, Lincoln argued that the Suspension Clause itself empowered him to suspend the privilege of the writ in cases of rebellion or invasion, at least when Congress was not in session. Therefore, no President has ever actually acted on Lincoln’s suggestion that the President has a constitutional emergency authority to violate a statute in order that all others not be violated.
Second, even as a rhetorical flourish -- an argument in the alternative, as it were, for those listeners (and there were many) who were not sympathetic to the argument that the President had a Suspension Clause power -- Lincoln's statement did not remotely suggest that the President has the constitutional power, let alone Posner-Vermeule's "paramount duty"--to "ward off serious threats to the . . . economic system," such as the risk of recession, by disregarding statutes. Lincoln was instead remarking upon the President’s alleged responsibility to take unilateral action on an emergency basis when doing so is necessary to preserve the nation -- when "all the laws" would otherwise go unexecuted because "the Government itself" would "go to pieces." (Lincoln later referred to it as a possible presidential duty to take those measures that are “indispensable to the preservation of the constitution, through the preservation of the nation.” As to the 1861 suspension of habeas, the burden on the President would have been to demonstrate that the fate of the nation depended upon denying courts the power to review the legality of a number of executive detentions -- a claim Lincoln understandably did not attempt to defend.)
As horrible a prospect as the August 2d default is, it would be no Civil War: the United States would continue to exist, and the bulk of its laws would be executed. The preconditions for considering the legitimacy of Lincoln's dictum, then, are not present here.
Lincoln, therefore, is hardly good authority.
But what about FDR? Didn't he at least articulate the view that the President could disregard the law in an economic emergency?
Eric and Adrian invoke Roosevelt's first inaugural address -- you know, the "only thing we have to fear is fear itself" speech. They write that in "addressing his plans to confront the economic crisis,"
FDR "hinted darkly that 'it is to be hoped that the normal balance of executive and legislative authority may be wholly equal, wholly adequate to meet the unprecedented task before us.' 'But it may be,' he continued, 'that an unprecedented demand and need for undelayed action may call for temporary departure from that normal balance of public procedure.' In the event, Congress gave him the authorities he sought, and he did not follow through on this threat.
Eric and Adrian do not say what FDR's "threat" was--in what way he was invoking a possible "departure from that normal balance of public procedure." Their presumption, however, is that FDR was threatening to act without statutory authority or, as they are encouraging President Obama to do, to act in violation of extant statutes.
FDR explained to the nation that "I am prepared under my constitutional duty to recommend the measures that a stricken nation in the midst of a stricken world may require. These measures, or such other measures as the Congress may build out of its experience and wisdom, I shall seek, within my constitutional authority, to bring to speedy adoption."
Those options -- the ordinary process of statutory enactment -- defined the "normal balance of public procedure." But how might FDR have deviated from that "normal balance"? "[I]n the event that the Congress shall fail to take one of these two courses, and in the event that the national emergency is still critical," he continued, "I shall not evade the clear course of duty that will then confront me."
And that course of duty would be . . . disreagrd of statutory limitations?
Hardly: "I shall ask the Congress for the one remaining instrument to meet the crisis—broad Executive power to wage a war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe."
So, the "one remaining instrument to meet the crisis," in FDR's view was . . . a different sort of statute -- namely, a broad legislative delegation.
The FDR example, then, undermines rather than supports Professors Posner and Vermeule's unilateral executive power thesis. Accordingly, it appears that history, like constitutional text and structure, is unavailing. (American history, that is to say -- in contrast with their "retail[ing] a kinder, gentler Carl Schmitt," which if done expressly is not the most optimal way to secure prominent billing in the Times.)
So where does that leave us? As the President said yesterday, it undoubtedly "would be easier if I could do this entirely on my own. (Laughter.) It would mean all these conversations I’ve had over the last three weeks I could have been spending time with Malia and Sasha instead. But that’s not how our democracy works." Posted
by Marty Lederman [link]