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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.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 Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler 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 yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.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 David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Preparing to Address the Debt Limit without Legislation
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Wednesday, April 26, 2023
Preparing to Address the Debt Limit without Legislation
David Super
Overnight, House
Republicans made a modest set of tweaks to their deeply unserious
debt limit legislation. Likely more are
to come. Last night’s changes do not
affect the basic core of the absurd and impractical design of the package: ludicrous caps that would force all programs funded
with annual appropriations outside of defense and veterans’ health care to be cut
59% within a decade. The overnight
changes included sops to special interests (specifically companies involved in
biofuels) and far right advocacy groups (speeding up the purge of millions of
extremely poor families from cash assistance and food assistance rolls).
The Republican
leadership, which can afford to lose only four votes to pass its package,
clearly does not have 218 votes yet: if it
did, it would race to the floor like a bat out of [the House Republican Caucus]
and call a vote before any more Members think up new demands. The haggling will therefore continue. It is moments like these that the leadership
is no doubt glad it kept Rep. George Santos around despite his spectacular dishonesty: if they only had three votes to lose,
settling on a bill would be even harder still.
At the end of the
day, the Republican leadership will almost certainly find a way to get 218
votes for a package. Those imagining
that “the moderates” will force the final package meaningfully back to reality
are due to be disappointed: what few actual
moderates remained in recent years were largely purged through primaries,
redistricting them into general election defeats, and forced retirements. And if any secret moderates remain, the fate
of those that voted to impeach Donald Trump will surely convince them to limit
their moderation to empty posturing. Assuming the House
Republicans finally pass their bill, what happens next? Nobody – not even Senate Republicans – will regard
this as an opening bid in a process leading to a deal. As I noted
yesterday, the House Republicans themselves would never attempt to move actual
appropriations bills with anything like this level of cuts, and everyone knows
it. So the question is
what kind of deal on the debt limit could pass.
And the answer, fairly plainly, is none at all. However this crisis is finally resolved, it
is highly unlikely to be through legislation preventing us from hitting the
debt limit. We therefore need to be
thinking through the other possibilities.
This prediction contradicts
the time-honored Washington truism that, in the end, the sober heads will
always come together on a deal. That assumption
has mostly been correct, although Bill Clinton’s bull-headedness prevented a
deal on major stimulus legislation in 1993 and health care reform in 1994
(despite some quite serious Republican proposals then on the table). My pessimistic
prediction also contradicts assumptions that Wall Street Republicans will talk some
sense into congressional Republicans, as they did
during the last debt limit faceoff in 2021.
I have no doubt that Wall Street will try, but I do not think they have enough
leverage in the current House Republican Caucus the way they did in the Senate
Republican Caucus that year. Theoretically, a budget
deal could pass the House on one of three possible paths: a bill relying on Democratic votes to offset
Republican defections, a more plausible bill passing with just Republican
votes, and the current ultra-maximalist Republican package. Closer examination, however, reveals that none
of these options is remotely plausible. A bill relying on
Democratic votes could never get to the floor for a vote. Apart from three
Freedom Caucus allies – who would never support such a bill – the Republican leadership
has ironclad control of the House Rules Committee (which has a 9-4 Republican majority). If Kevin McCarthy allowed the Committee to report
out a budget bill depending on Democratic votes, the Freedom Caucus would promptly
invoke the rule
change it won at the beginning of the year to declare the Speaker’s chair
vacant. Someone who abased himself to
become speaker as much as Kevin McCarthy did in January is not going to sacrifice
that office and end his political career in a likely-failed attempt to bring
debt limit legislation to the floor. And
the House Rules Committee routinely disallows floor amendments and other
vehicles that could lead to a vote on such a package during the consideration
of other legislation. A more substantively
realistic Republican-only bill is similarly impossible. A mere five Freedom Caucus Members could and
would block such a bill. Six
of them never voted for Kevin McCarthy for speaker. Someone who maintains that, in the end, the
House Republicans will vote for a plausible budget bill needs to identify which
two of Andy Biggs, Lauren Boebert, Eli Crane, Matt Gaetz, Bob Good, and Matt
Rosendale they are going to pick off (after, of course, securing the votes of
Chip Roy, Paul Gosar, Jim Jordan, Andy Ogles, Scott Perry, and the incomparable
Marjorie Taylor Greene). The House
Republican Caucus does not have anything approaching 218 Members who are
serious about governing or who can be swayed by even the most concerted Wall
Street Republican efforts. As Joe Biden correctly
points out, this is not your parents’ Republican Party. That leaves the
prospect of enacting something essentially like the current House Republican
bill: legislation fully acceptable to
the Freedom Caucus. Could Democrats
decide that the prospect of default is so horrific that they must capitulate
completely and pass the House Republicans’ bill? They would have no leverage to seek any but
the most cosmetic changes because, as noted above, neither a bipartisan bill nor
a more moderate Republican one could both reach and pass the House floor. This grim option
might look like the only path forward at the end of the day, but it, too, does
not work. That is because the House
Republicans’ legislation would force a rapid series of additional crises over
the next year and a half in which they could and would demand even more
disastrous concessions. First, the debt
limit increase in the House Republican bill would not even put off the next
debt limit crisis beyond the 2024 elections.
So Democrats would face another choice of fundamentally reshaping the country’s
governance or breaching the debt limit barely a year down the line. And there is no conceivable reason to concede
the first time if they are not also going to concede a second. They could try demanding a larger increase in
the debt limit to postpone the second crisis, but what is their leverage? Moreover, because
the House Republicans’ bill’s caps on annual appropriations are so grossly
unrealistic – requiring a one-third reduction in everything but defense and
veterans’ health care just in the first year – Democrats would have no
choice but to negotiate increases to those caps. And House Republicans would refuse to make
those modifications without offsetting deep cuts in entitlement programs – with
cuts of this magnitude effectively impossible without touching Social Security,
Medicare, or Medicaid. Paul Ryan
negotiated cap increases largely “funded” by budgetary gimmicks, but the
Freedom Caucus fought him then and is both stronger and more aggressive
now. President Biden
had a front-row seat to just this kind of sequential unraveling as vice
president in the Obama Administration and seems
to have learned the lesson that one capitulation inevitably leads to another
and another. More generally, Representative
Gaetz – who clearly has more influence than Speaker McCarthy – made clear
in January that he and his colleagues believe in not making a deal until they
run out of “stuff to ask for”. They
dominate the Caucus, and with primaries remaining an effective weapon to keep
Republicans from crossing party lines and the Speaker vulnerable to ejection at
any moment, nobody has leverage to force them to moderate. The distinctive
dynamic in this process is that House Republicans are trying to extort
Democrats to provide votes and political cover for a program that Republicans
could not and would not implement themselves:
transformational reductions in the role of government and deep cuts to
entitlement programs that would infuriate voters and destroy their party if passed
on a party-lines vote. Democrats have no
reason to think voters will understand that they were coerced if they vote for
legislation implementing such a deal. So no legislative
solution to the debt limit crisis is likely to appear: not now and not later. Given the disarray House Republicans have
shown over the past few weeks, they may very well prefer to relocate this fight
to the Fall so that it gets rolled in with negotiations over annual
appropriations bills (if the Gaetz-Boebert faction is willing). But neither dire warnings about threats to
the nation’s well-being nor Wall Street Republicans’ muscle will save us this
time. Given the hopelessness
of negotiating with this particular group of fiscal terrorists, and the
difficulty of explaining effectively to voters what the parties’ respective
positions are in the inevitable resulting impasse, President Biden is wise to
insist that raising the debt limit is non-negotiable. Democrats should continue to offer
Republicans only the clean debt limit increase they granted President Trump
after his 2017 tax cuts ballooned the deficit. The Administration
also needs to decide what it will do when – not if – House Republicans refuse
to pass a clean debt limit. Opinions
vary about the relative merits of one of the technical work-arounds (such as selling
a $1 trillion platinum coin to the Federal Reserve) or selling bonds at a
premium, declaring the debt limit unconstitutional under Section 4 of the Fourteenth
Amendment, or a managed default. But wishful
thinking based on an earlier version of the Republican Party that has clearly left
the scene serves little constructive purpose.
@DavidASuper1
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