Friday, July 08, 2011

Will Obama drive us over the cliff while proclaiming his constitutional purity?

Sandy Levinson

Jack's post helpfully (and I think conclusively) demonstrates that the Congressional Republicans are basically violating their oath to support the Constitution by refusing to shore up the debt of the United States. But so what? I.e., what remedy for such unconstitutional conduct--i.e., the refusal to pass legislation that would allow the United States to meet its domestic and foreign debts--is there? Can one go to a court and get a writ of mandamus, directed at every member of the House and Senate, ordering them to live up to their oath? This suggestion is as ridiculous as suggesting that Lincoln should have gone to a court to seek a similar writ against Southern secessionists.

Even more to the point, though, is the conduct of Lincoln's predecessor, James Buchanan, widely regarded as possibly the very worst of our now-44 presidents. (For what it is worth, Buchanan had probably the best resume of any post-Founding era President, and he was scarcely an idiot.) Buchanan actually agreed with Lincoln that secession was illegal, but he also believed that the Constitution provided the national government no way of preserving the Union other, basically, than through exhortation, which he eloquently presented in his final State of the Union message in December 1860.

In an article on "Constitutional Crises," Jack and I offered a typology of such crises. Type I is open defiance of the law, as arguably occurred, at least from his own perspective, in Jefferson's purchase of Louisiana and, possibly, in some of FDR's actions in the run-up to World War II. But they are extremely rare, for obvious reasons--what President wants to admit that he is engaging in civil disobedience--and even Jefferson's and FDR's doubts about the propriety of their actions can be found in private letters rather than public documents. A Type II crisis, typified best by Buchanan, is when a political leader believes there is no alternative to going over the cliff--in that case, accepting illegal dissolution of the Union--because the Constitution doesn't provide an adequate way to prevent it (beyond exhortation, as in "come let us reason together"). A Type III crisis, incidentally, is when a president (or other leader) faced with the Scylla of engaging in open defiance of the law and the Charybdis of leading us over a cliff, manufactures a legal argument designed to justify the emergency action. Type III crises are a relatively common event in our history.

So let's review the bidding: Laurence Tribe, who remains the country's leading academic constitutional lawyer, backed by Jack, argue that the President is without legal resources should congressional Republicans continue to behave like latter-day Jefferson Davises and risk the destruction of the national (and world) economy (and, according to Bruce Bartlett, vital American national security interests). So are we going to go over the cliff, with Obama, the legendary former professor of constitutional law at the University of Chicago and president of the Harvard Law Review, saying, like Buchanan, "I know this is terrible, but what do you expect me to do, since I've sworn to uphold the Constitution?" Or will he, like Lincoln (and other predecessors), decide that driving over the cliff in the name of constitutional fidelity, when faced with a Congress that is traducing their own such duties, isn't really such a great idea? If that is the decision, will he do by becoming, almost uniquely, a Type I "constitutional defier" (violating the Constitution in order to save the American order, which Michael Stokes Paulsen argued, incidentally, was a power given by the Oath of Office, which is how he defended Abraham Lincoln and, more recently, George W. Bush). Or will he, like most political leaders, decide that there might be some merit in the Section Four argument for presidential authority after all, whatever grade it would receive from his mentor at the Harvard Law School?

As Jack argues, incidentally, it is vital that Obama begin to educate the public about the unconstitutional behavior of his Republican adversaries, and if there is anything we seem to know about him, it is that he will be extremely reluctant to do so. But without such attempts at public education, preferably in a nationwide address addressed to the greatest potential crisis since September 11, he allows all of this to be reduced to "pure politics," with the Constitution serving only as a "suicide pact." Will that be his legacy to American constitutionalism?


Professor Levinson- if you and your cohorts keep ratcheting up the rhetoric, soon you will have convinced yourselves that Obama needs to suspend the writ of habeas corpus, and start locking up those radical Republicans. Why don’t we try starting at a somewhat more reasonable point: “The White House and Congressional Republicans agree in principle that the debt ceiling needs to be raised, but they are at an impasse on how to constrain the deficit’s rapid growth.”

So says Professor Tribe, who seems to have decided to act as the voice of reason here. As Tribe observes, there may be a constitutional duty not to default on the public debt, but that doesn’t tell us how we avoid such default. Do we cut spending, as the Republicans want? Do we raise taxes, as the Democrats would prefer? Or do we continue to run large deficits for as long as the economy remains weak, which is the solution advocated by die-hard Keynesians like Paul Krugman. But to quote Tribe again, this solution would also arguably violate Section Four because “the greater the nation’s debt, the greater the difficulty of repaying it, and the higher the probability of default.”

There is no logic to the claim that the Fourteenth Amendment dictates a particular solution to the debt crisis. If the Republicans pass a bill that raises the debt limit but attaches conditions that Obama does not wish to accept, does he have a constitutional obligation to sign the bill? If not, why would the Republicans have a constitutional obligation to raise the debt limit on Obama’s terms? Incidentally, Obama has reportedly threatened to veto a short-term increase in the debt limit. Explain how that is not a violation of the Fourteenth Amendment under your theory.

This argument started out as a rather far-fetched attempt to bolster Obama’s negotiating position. Naively, I thought that those who have long railed against unrestrained executive power would summarily dismiss an attempt to give the president the one power that even John Yoo would not allow him-the power of the purse.

At this point, though, it is apparent that it has become nothing more than political animus dressed up as constitutional argument. Comparing the Republicans to southern secessionists because they want to reduce federal spending makes about as much sense as comparing Obama to Hitler because he wants to increase federal control over health care.

Actually, if you look at how the Nazis came to power, their continuous assault on the legitimacy of the Weimar government, their outright assaults on representative government, their racial animus towards anyone not as white as the driven snow, you could mistake the current (past 17 years) GOP for Hitler's Nazi party.
The GOP mirrors both the Nazi party with its SA thugs and the southerners who refuse to give up the lost cause.

While wrapping themselves in the flag, they assault every Constitutional principle with a straight face and, surprisingly, many people I know, who I used to respect buy into this view. Logical people believing that Obama is leading us to communism.

I need a drink.

The obvious reason to blame Republicans is that the debt ceiling limit is an attempt to revisit what Congress already approved. The basic debt rules were previously set and approved by Congress when it approved the budget and taxes. It was that Congressional approval which resulted in compromises regarding spending and taxes and which created the need to raise the debt ceiling.

At this point, raising the ceiling itself (putting aside the economic absurdity of even having a debt ceiling) should be pro forma. Congressional Republicans are threatening to drive the country off a cliff unless they are allowed to renege on their previous commitments.

Anyone remotely familiar with the negotiating tactics of the slaveholders prior to the Civil War will recognize that the slaveholders' intellectual descendants haven't forgotten the technique.

"Professor Levinson- if you and your cohorts keep ratcheting up the rhetoric,"

Once again, your form of argument exemplifies what you claim to oppose. Your moralizing rings hollow.

Tribe: "Only political courage and compromise..." which the Republicans have refused to accept.

Have you read Bruce Bartlett's statement? Have you followed the history of the debate over the debt itself, or do both you and the Constitution by rights live in a vacuum?

You're arguing your clients' willingness to deal in good faith, and that's a case you cannot win. So you're left defending the economic policies themselves. Bartlett was right: Bart DePalma is now in the mainstream of the Republican party.
"We had to destroy the village to save it"

Mark- the Republicans who ran for Congress in 2010 promised that they wouldn't raise the debt ceiling without conditions- this has been completely clear to everyone in DC. Congress could have raised the debt limit during the lame duck session, but chose not to-- precisely because the Democrats wanted to stick the Republicans with the responsibility for doing so.

Here, just as a random example, is a Jan 10, 2011 story ( entitled "Dems Lay Raising Debt Ceiling on Republicans" in which this point is laid out. In addition to quoting moderate Democrats who previously voted against raising the debt ceiling and said they would refuse to do so absent fiscal reforms, it quotes one Anthony Weiner as an example of Democrats who had previously voted to raise the ceiling but indicated that they might not do so again. And, of course, just a few weeks ago the House took a "clean" vote to raise the debt ceiling and about half of the Democratic caucus voted against it.

When Boehner and Obama reached the budget deal in April, everybody understood that this was just the warm up for the debate over the debt ceiling. Surely you are not going to dispute this, as you know there are a thousand stories that say just that. Obama was free to insist that the debt ceiling be part of the negotiations over the FY11 appropriations, but he knew that the concessions required for a deal on the debt ceiling would be much greater. So he did not even try to include it, as far as I know.

Apart from the fact that everyone involved in the budget deal understood that the debt limit would be a separate fight, it is fairly silly to characterize this as revisiting what was agreed to in April. That was only about FY11 appropriations- this is about spending over the next decade, if not longer. I doubt that the Republicans are seeking any significant changes to the FY11 budget at this late date.

Ah, the full court press is on to back the party.

Once again, if the Congress does not authorize an increase in the debt limit, Treasury has sufficient tax revenues to not only service the interest on the debt, but also fully pay Medicare, Medicaid, Social Security, unemployment insurance and defense contracts.

Thus, there is not a shred of truth whatsoever to the claim that Treasury must default on the debt and thus Congress is violating the Public Debt Clause of the 14th Amendment if it declines to raise the debt ceiling. What will result at worst is a partial government shutdown.

The fact that Treasury is even implying this possibility and thus panicking the markets in a thuggish attempt to gain political advantage has gone beyond reckless to reprehensible.

Let me be even more blunt. The fact that a chorus of progressive law professors are repeating this falsehood to assist the Obama Administration in gaining political advantage is hardly more praiseworthy.

Do the professors here really want Obama to drive their reputations over the cliff for partisan politics?

Changing the subject appears to be a popular tactic within the Confederate Party these days. As I've pointed out here before, the debt ceiling was political theatre every year until now. The real decisions were made when budget and taxes were approved; the debt ceiling was a formality, albeit one which lent itself to political posturing on both sides.

The crime here is in actually threatening to do something unconscionable. And Obama's an accomplice for negotiating at gunpoint instead of announcing at the outset that no deals would be made.

Mark- you keep saying that the debt ceiling was political theater up until now. I have pointed out that this is not true (see, eg, 1986 when Congress refused to raise the debt ceiling until Gramm-Rudman was passed and 1995-96 which we have already discussed) and have referred you to sources which you would apparently prefer to ignore.

It seems clear to me that everyone understood that raising the debt ceiling was going to be a real issue, notwithstanding the agreement on the FY11 budget. I don't think you are actually disputing that; you simply think that the Republicans are obligated to raise the debt limit on Obama's terms. Well, you don't need to take the word of the "Confederates" that you are wrong- listen to Professor Tribe.

I'll observe, as I have before, that nobody refers to the Constitution as "a suicide pact", unless they want it violated. The idea being that, when push comes to shove, and it's your turn to blow your brains out, you should violate the pact, rather than kill yourself.

So let me say it: The Constitution is not a suicide pact. And by that I mean not that it IS, and so should be repudiated, but instead literally, that following it would not be suicidal.

And let me say something else: The 'argument', if you can even call it that, for not raising the debt ceiling being unconstitutional, is lame, lame, lame. The way so many liberal scholars picked up this silly Democratic party talking point, and ran with it like it was a serious position, ought to be an embarrassment to you all.

D. Ghirandaio observes:

"Bartlett was right: Bart DePalma is now in the mainstream of the Republican party.
'We had to destroy the village to save it.'"

Get the yoke to accommodate mls who seems to have given up his feeble attempts at subtlety in an effort to appear objective. Now mls attacks " ... the solution advocated by die-hard Keynesians like Paul Krugman" who was one of the few economists that recognized the economic perils of Bush/Cheney well prior to the 2008 Bush/Cheney Great Recession.

And mls' reference to Prof. Tribe "as the voice of reason" is a not so subtle effort by mls to denigrate Jack Balkin, who has laid out extensive thoughts on Section 4 well beyond the 700 words or so in an op-ed. Reading Balkin in the entirety provides more background than has been offered by others in the current environment. And as Balkin notes, he does not disagree with Tribe. But mls apparently got a little smugness with the notch in his constitutional gun belt by getting a response from Balkin, who then handed mls his a**, despite mls' rather lame attempt of a response loaded with rhetoric. And mls continues with his rhetoric beginning with his initial comment on this thread.

Can we expect some "Uncivil War Amendments" to result from what is a political problem for which the Constitution may not have an answer?

Strangely enough, repeating misleading claims doesn't increase their credibility at all. And constantly changing the subject, rather than staying on point, isn't a good tactic either.

Let's try again. Tribe quotes Harlan: "the Constitution is not a panacea."

The debt ceiling is a stupid law that was relatively harmless when it was used as another bargaining chip in the process of negotiation upon which our government is founded: negotiation upon a text. Call it Midrash. As to whether the law is still being used in that way, the debate here is between mls and Bartlett, with the rest of us as witnesses. mls sent us to this:

"Only eight of the 37 Democrats that voted against the raise returned for the 112th Congress. The rest either lost their re-election campaigns, retired or opted against re-election to run for Senate and lost.

...Weiner then laid the new onus of responsibility squarely on the GOP.

'They're in charge. They're going to get to decide the bill we vote on," said Weiner. "If it is a responsible bill that makes sense, that shows a real plan to try to get things under control, then I'll certainly consider voting for it. If it's the same kind of policies they've had recently ... then I'm a no.' "

Does this counter Bartlett's argument?

mls: "And, of course, just a few weeks ago the House took a "clean" vote to raise the debt ceiling and about half of the Democratic caucus voted against it."

I would have voted it but I'm not a politician. The move was political thuggery, which mls has renamed as willingness to compromise. mls again is being both lawyerly and moralistic.

Mark Field said...

The real decisions were made when budget and taxes were approved; the debt ceiling was a formality, albeit one which lent itself to political posturing on both sides.

This is the same battle all over again.

The GOP is demands spending cuts making up a small fraction of the federal deficit in exchange for approving a spending or borrowing bill.

The Dems dip into their 1995 playbook, demand what is basically status quo spending along with tax increases and then falsely accuses the GOP of wanting to shutdown the entire government (or DG's Vietnam metaphor "destroying the village.")

The GOP generally backs down under the blackmail and accepts a fig leaf "grand compromise" continuing borrowing and spending as before.

The only exception to that rule to date is when Clinton signed off on the Gingrich balanced budget plan after the 96 election.

For all the grief Obama gets from his left base about "caving to the GOP," the Prez has yet to give any ground to the GOP to limit the government's rampant overspending. That $39 billion in "cuts" in the last continuing resolution was a complete mirage according to post mortems by the CBO. Obama was gloating after the deal that all his spending priorities continued.

I have no reason to believe that things will be different this time.

I noted in a comment at an earlier post on Section that I read Anita S. Krishnakumar's "In Defense of the Debt Limit Statute" 42 Harv. J. on Legis. 135 (2005), noting that no references were made to Section 4 of the 14th Amendment, although there were two (2) footnote references to Abramowicz's 1997 article that started the current brouhaha ("Beyond Balanced Budgets, Fourteenth Amendment Style"). She provides an extensive history of activities under the statute over the years and the political games played. Since her article was published in 2005, her defense of the statute may have been based upon the party in power at the time. But the history lays out for those around at the various times the politics in play. [Note: Anita's article is not available via SSRN; try HeinOnLine.]

professor Tribe seems to be inclined to join Obama. In seeing us drive over the cliff. Richard Vinet

The "cliff" we're driving towards is unsustainable debt. The more debt we take on, the harder it gets to avoid more debt. If the amount of debt we already have taken on makes reducing the deficit impossible, then we're already over the cliff, we just haven't yet hit the ground below.

This is literally insane, insisting that refusing to take on more debt constitutes repudiating the debt. It shows a disconnection from reality of psychotic dimensions.

Brett might be suggesting with this:

"This is literally insane, insisting that refusing to take on more debt constitutes repudiating the debt. It shows a disconnection from reality of psychotic dimensions."

that it is time for a universal debt "haircut" as an alternative to more debt. Of course, we might all end up looking like "Daddy Warbucks." The hope is that "The Sun'll come out tomorrow, betcha bottom dollar" (whatever that may be worth). Perhaps Joseph Schumpeter's "creative destructionism" applies.

Shag, you might define your "universal haircut".

The analogy I use is to skateboarding down a mountain road. You've already reached the speed where the only way to stop is to go off into the ditch, and suffer a bad case of road rash. So you don't want to stop. But you're going faster and faster, and the longer you put it off, the worse the crash is going to be.

Some are arguing that, as the road gets steeper, eventually it will go vertical, and you can sky dive off into infinity, no worries. At least that's what their models predict. But if they're wrong, you're going home in a body bag.

I'm in the "crash this sucker before it's going any faster" school of thought. A year or two ago, we might still have dreamed of a soft landing. I think we've gotten beyond that, and should act while "survivable" is still in the cards.

One more time: numbers and graphs,
and numbers and graphs, and numbers and graphs.

We have a congress problem, not a debt problem. And we have a coward problem.

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