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
"What Part of 'Republican Form of Government' Don't You Understand?"
That was Jack Balkin's reaction to Bush v. Gore, and I confess that it's mine to the emerging Section 4 argument about the debt ceiling. To repeat my structural point: With enough political wind behind it, any constitutional argument is plausible/credible/winning. And to add one: The Section 4 argument is Heller for liberals.* With no more than a one sentence dictum in a plurality opinion available, the Section 4 argument reverts to text and original understanding, bolstered by imputed general principles underlying our form of government.**
Are there no living constitutionalists in foxholes? Actually, what would living constitutionalism mean here?
Which gets me, sort of, to the merits. What does it mean to say that Section 4 makes a debt ceiling unconstitutional? Something like this, I think: The Treasury must continue to make interest payments on already incurred debt. Fine, as the Republicans have said (and so, they say, they aren't questioning the public debt). The government's collecting taxes, and the Section 4 argument means that the United States has to use those taxes to pay the interest. But, the Treasury responds, Congress has required us to spend money on a bunch of other things, and the Take Care Clause requires that we make those payments as well. But, the Treasury continues, the taxes that are coming in aren't enough to do both. Section 4 doesn't have priority over the Take Care Clause (at least not in the versions of the Section 4 argument I've seen).
So, what to do? Obviously, ask people to lend the Treasury the money to pay both the debt and the cost of existing statutes. But, one might think, the Treasury lacks statutory authority to incur debts for the United States beyond the limit set by the debt-ceiling legislation. After all, the Constitution also says that "no money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law," and borrowing money commits the government as a whole to appropriating money to repay it. This means, one might think, that Section 4 protects existing debt but has no bearing on limitations the debt-ceiling statute places on future borrowing.
But, the "Section 4" argument has to continue, that's not quite right. We know that the Executive Branch does have the power to impose an obligation on Congress to appropriate money -- when it engages in an unconstitutional taking of private property, the Executive Branch implicitly commits Congress to appropriating the constitutionally required just compensation. (Jacobs v. United States, if anyone cares.) So, the co-existence and equal status of Section 4 and the Take Care Clause authorize the Treasury to go on to the markets and borrow enough money to pay the debts and the cost of existing statutes.
Now, what are lenders going to require as the interest rate? I think people are assuming that the interest rate demanded will be quite high. But, if the Section 4/Take Care argument is right, it shouldn't be.***
Living constitutionalism, anyone?
* Brad DeLong, citing Bruce Bartlett, says that it's not only liberals who refer to Section 4. On these matters, though, Bartlett's an apostate conservative.
** The dictum plays the role United States v. Miller played in Heller.
*** DeLong's recounting of discussions within the Treasury Department indicates, correctly, that the interest rate question depends on uncertainty about the legal status of what I'm now calling the Section 4/Take Care argument. Yet, if that argument takes hold, uncertainty ought to dissipate (to the level associated with anything predicated on future legislative action -- "political risks," as I understand the jargon).