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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
The Unseriousness of the House Republicans’ Debt Limit Bill
David Super
Much of the news
media has been surprisingly credulous of the House Republicans’ debt limit
bill.Several reporters have asked my
opinions of various details of the bill as if it was a legislative proposal
that might form the basis for an ultimate resolution.The truth is actually very much the
opposite:this bill tends to confirm the
suspicions many of us have had that no deal is going to be possible.
These reporters, as
well as others not accustomed to working on budgetary issues, miss the key
distinction between a bad proposal and an unserious one.It is possible to negotiate with someone
making a bad proposal, even a very bad one; whether one chooses to do so or
not, of course, is another question.When someone makes a profoundly unserious proposal, however, they are
signaling that they are unwilling or unable to come to grips with the issue at
hand.Unless and until they can do so,
no negotiation is possible.
The House
Republicans’ proposal is, indeed, very bad public policy from my perspective, from
that of congressional Democrats, from that of the President, and likely from
that of many moderates. That, by itself,
does not render this proposal unserious.But this proposal is also very bad public policy from the perspective of
the House Republicans themselves:this
is not something that any significant number of them would actually want to implement
in the real world.That they are unable
to advance a proposal that at least they would like to see become U.S. public
policy means we are a very long way from any process that could lead to a
congressional budget deal.
The House
Republicans have proposals that would dramatically increase the ranks of those without
health insurance and those facing hunger
as well as ones that would rapidly gridlock
the administrative state.These are all
very bad ideas.It is possible, however,
that House Republicans actually want these things to become law.
The core of their
proposal, however, is a cap on annual appropriations dramatically below the levels
required to maintain current levels of activity.These
cuts would be 13% in the fiscal year beginning this October and would rise
rapidly to 24% by 2033.Cutting most programs
13%, much less 24%, would require radical reductions in the role of government
in our society.Those figures, however, dramatically
understates the proposal’s effect.
House Republicans
insist that they do not want to cut defense spending.Many also insist that they would protect veterans’
health care – the single largest non-defense discretionary appropriations
account.If Congress protected the Defense
Department, but not veterans’ health care, from cuts, the reductions in
everything else would be 27% in the first year and 49% after a decade.If Congress protected both defense and veterans’
health care, everything else in the annually appropriated budget would have to
be cut by one-third immediately, with a 59% reduction required in ten
years.
Of course, those
are only average reductions.Many functions
we obviously are not going to cut (e.g., congressional salaries, the
President’s Secret Service detail, air traffic controllers, TSA inspectors).Each time an essential program is taken off
the table, or is allowed to absorb a cut smaller than 59%, the cut to
everything else must become even deeper.
House Republicans,
of course, offer no suggestions – not even bad ones – for how they would meet
these targets.They have not, and most assuredly
will not, introduce a single appropriations bill that would mark to these
limits or anything remotely close.They
could not come close to passing such a bill even in the House.President Biden has quite appropriately been
pointing out that his budget
includes the complete text of the appropriations bills he would like to see enacted
and asking House Republicans to offer comparable clarity.
House Republicans
therefore are demanding not just that Democrats accept their radical policies
but that Democrats provide political cover and votes for policies House
Republicans would not vote to pass themselves.
What would happen
if Congress and the President actually enacted the House Republicans’ draconian
appropriations caps?We have a pretty
good idea because House Republicans tried something quite similar a decade
ago.Then, House Speaker John Boehner insisted
that increases in the debt limit be matched with reductions in appropriations
caps.Facing his threats to let the
nation default, President Obama caved, agreeing to what came to be known as the
sequestration appropriations cuts.
The caps the Budget
Control Act of 2011 imposed were considerably less draconian than those House
Republicans are advancing now.But they
were still wholly unrealistic, and House Republicans knew it.Rather than attempting to meet the caps they
themselves had insisted upon, House Republicans negotiated
cap increases every single year covered by the Budget Control Act.They did not even try to meet the levels they
had mandated:they would mark up several
appropriations bills with average cuts well short of those required but hold
back the large Labor-HHS-Education bill so that the total of their bills did
not exceed the caps.The
Labor-HHS-Education bill would move only after they raised the caps.
The cuts imposed
during President Obama’s second term did lasting harm to the country even with the
increased caps House Republicans negotiated, but that process also showed the
unseriousness of pretending to reduce the deficit with austere budget caps wholly
disconnected from any actual policy proposals.
If Democrats,
through some combination of amnesia and madness, were to agree to cuts of the
kind House Republicans are proposing, we could hope that the House Republicans
would again seek relief from their own proposal.The current composition of their caucus, however,
makes that unlikely.The same extremists
that took Kevin McCarthy to fifteen ballots before electing him speaker would scuttle
any increase in the caps.Appropriators
would find writing specific bills to meet these targets politically hyper-toxic
and likely would sit on their hands.We
then would get a government shutdown with the precipitating party – the House
Republicans – having no proposal of their own.
By advancing a
proposal that even his own caucus would never implement, Speaker McCarthy has
confirmed that he has little to bring to any bargaining table.Democrats will not, and should not, negotiate
with someone so evidently lacking the authority to commit his own caucus.In a subsequent post I will address what I
think will happen with the debt limit.