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
President Biden
got owned.Nominally, he got owned by Speaker
Kevin McCarthy.In reality, he got owned
by Rep. Matt Gaetz.Rep. Gaetz had a clear,
well-developed long-term strategy that he followed with great discipline.The Administration had only a set of half-formed,
often contradictory, impulses that it followed haphazardly, rarely thinking
even one move ahead.It likely thinks it
won several news cycles and is hard at work trying to win another.Rep. Gaetz set out to win on substance, and
the wailing and moaning we are now hearing from the Freedom Caucus is precisely
what they ought to do to lock in their huge substantive victories and set the
stage for more.Surely the Members that
are paying attention know that they won. But by withholding their votes, they can force
even more Democrats to vote for this deal.
The details have
yet to emerge, but from media accounts it appears the President agreed to a substantial
nominal-dollar cut in non-defense discretionary spending for next fiscal
year.When roughly five percent
inflation is considered, this will be a deep reduction in the capacity of the
federal government to perform its basic functions.For the following year, nominal non-defense
discretionary spending would rise one percent, which after the effects of inflation
will mean several additional percentage points of real cuts in its ability to
do its job.
But it gets
worse:a lot worse.Media accounts say that veterans’ health
care, one of the larger accounts within that category, will be protected.That means that everything else will have to
absorb proportionately deeper cuts to make up for those not going to veterans’
health care.Numerous other government
functions (e.g., Border Patrol, protective details for high officials, utilities
for federal buildings) will not be cut, forcing still-bigger cuts in what remains.
In addition, if
Congress and the President do not agree upon all twelve annual appropriations
bills by January 1, the agreement apparently would impose a year-long
continuing resolution (CR) with a one-percent across-the-board nominal
cut.This will give Republicans – who can
effortlessly hold back one or more bills – enormous leverage in negotiating the
content of those appropriations bills.So not only will the levels be far below those needed to maintain
government functions, but the money that is spent will almost certainly be
badly misallocated.It remains to be
seen how these pieces fit together, but even the best-case scenario is pretty
grim.
This result has
enormous long-term significance.First,
and most obviously, each year’s appropriations discussions start with the prior
year’s spending level.Merely restoring a
program to its now-current level of effectiveness will require the President and
Congress to go far above that baseline and invite the label “big spenders.”Many programs still have not recovered from
the “sequestration” cuts President Obama agreed to over a decade ago.
More insidiously, underfunding
government programs will cause them to function less well.National parks will close off areas for lack
of resources for operations and maintenance.People will miss flights as TSA lines lengthen, or those flights will
get cancelled when air traffic control is overstretched.People will get sick when contaminated meat
gets past USDA inspectors even more overwhelmed than they are today.The FDA will hold up approvals of anticipated
drugs for lack of examiners to review applications.All this will support the Republican
narrative that government is incompetent and “deserves” more funding cuts.
Beyond that, the
Biden Administration passively accepted – at times even reinforced – Republicans’
profoundly tendentious framings of the issues.Rather than working to gain public acceptance of the legal theories that
could end debt limit hostage-taking once and for all, the Administration
planted stories about how it was having trouble taking seriously “out there”
theories and the President himself pledged not to use them (and thus
obliterating his negotiating leverage).
People who would
never be foolish enough to say that de-indexing the Internal Revenue Code was
not a tax increase are nonetheless accepting the inflation-denialist demand to
discuss spending programs only in nominal dollar terms.
The Administration
ceded without serious contest the mantle of “fiscal conservatives” to Members
of Congress proposing huge unfunded business tax cuts that would swamp the
effects of these spending cuts.The
approach of Presidents Ronald Reagan and George W. Bush was to ram through large
unfunded tax cuts and then later “discover” a “fiscal emergency” that “required
shared sacrifice” to address.Today’s
Republicans believe they can get away with pursuing these contradictory agendas
simultaneously.And the Biden
Administration is telling them they are right.
Perhaps most insidiously,
the Administration continually accepted Republicans’ characterization of
eligibility purges from basic assistance programs as “work requirements.”None of the Republicans’ main proposals for
the Temporary Assistance for Needy Families (TANF) block grant had anything to
do with putting anyone to work:they simply
sought to increase the quotas for families that states must purge from their already-shrunken
assistance programs in order to avoid creating the work programs states almost
unanimously are unwilling to operate.
And the so-called
SNAP “work requirement” would cut off food assistance after just three months
to low-income people between ages 50 and 55 who cannot prove that they are
working at least half-time every month.Minimally
skilled people in this age range, which the Social Security Administration describes
as “closely approaching advanced age,” commonly see their employment prospects
dwindle as they are unable to compete with younger people at hard physical
labor.They may make ends meet with several
jobs, often with volatile
hours.If they cannot collect adequate
verification of all those hours each month, or if their total hours ever dip
below half-time, they are cut off.Nothing in current law or the Republicans’ proposal requires states to give
individuals in need the opportunity to work for continued benefits.And despite generous financial incentives to offer
work slots, only a handful of states even purport to do so.Yet when most reporters hear about “work requirements,”
they assume that only the willfully idle are affected.And the Biden Administration has made little
effort to educate them otherwise – making its capitulation all but inevitable.
President Biden had
a front-row seat for the Obama Administration’s short-sighted, strategically
clueless approach to Republican debt-limit extortion.Apparently he learned very little from
it.He had plenty of time to raise the
debt limit on a budget reconciliation bill after the election, needing no Republican
votes.All candidates for Chair of the House
Budget Committee last fall were publicly promising debt limit extortion to radically
transform the federal government.
Failing to raise
the debt limit in December might have made sense as part of a plan to invoke
the 14th Amendment or to employ one of the several available
technical means of avoiding it.Unfortunately, the Administration had no plan.This is the result.The President should tip his hat to Matt
Gaetz.