The White House Unilaterally Disarms

It’s better, apparently, to trust in Republican goodwill:

The White House said on Tuesday that the 14th Amendment of the U.S. Constitution was “not available” to President Barack Obama to avoid the August 2 deadline to raise the U.S. debt ceiling.

“There are no easy ways out here. There are no tricks, there is no citing of the Constitution that suddenly allow us to borrow,” White House press secretary Jay Carney told reporters. “It’s not available.”

Apparently that would rule out coin seigneurage as well.

A gentle reminder to the White House:

    

   IS NOT A PLAN.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

31 thoughts on “The White House Unilaterally Disarms”

  1. As opposed to actually thinking that the 14th Amendment backdoor is actually a bad idea?

    You may think it’s an Ace in the hole, but seems more like the (switching metaphors) Queen of Spades. A very risky card to play.

  2. @MobiusKlein —

    That’s a far cry from admitting that you don’t have a good card! Besides, I actually think it’s a decent argument, and there is a VERY strong argument that no one would have standing to sue. if the choice is between unpalatable and disastrous, then I would go with unpalatable.

  3. Why would Obama be scrupulous about obeying the Constitution here when he isn’t with regard to imprisoning people without a trial, maintaining secret prisons, and assassinating Americans abroad? I mean the question seriously, not rhetorically. I suspect that his scrupulousness now is a negotiating tactic, but, if it fails as a tactic, it will be difficult for him to explain a flip-flop to using the 14th Amendment. Will his lawyers change their minds?

  4. All the 14th Amendment really requires that debt service be given priority over other spending once no new debt can be issued. The Fourteenth Amendment gets us to not defaulting but it doesn’t get us to mailing out 100% on paychecks to federal employees or making 100% of payments on food stamp benefits. You need the Congressional sovereignty argument–when Congress authorizes appropriations knowing that paying for them requires borrowing in excess of the debt ceiling Congress implicitly authorizes such borrowing and repeals the debt ceiling–to bust through the debt ceiling and make sure that Social Security and unemployment benefits continue uninterrupted and that military supplies get procured.

    Hopefully this is what the administration has in mind when it says that the 14th Amendment option doesn’t work. Alas, hope is not a plan and I don’t expect the administration to announce as its position that the annual appropriations bill implicitly repealed the debt ceiling.

  5. It’s pretty incredible. Mark’s sources tell him there’s no contingency plan, which would by itself have been a compelling demonstration; and now the aces in the hole have been ruled out. No wonder the Republicans think Obama is a patsy, a well-meaning, competent, but ultimately gutless Neville Chamberlain.

    President Obama last night:
    “America, after all, has always been a grand experiment in compromise.”

    Tell that to George III, Santa Anna, Jefferson Davis, Sitting Bull, Kaiser Wilhelm, Emperor Hirohito, Adolf Hitler, and Josef Stalin. Lincoln’s eirenic Gettysburg Address was a velvet glove round an iron hand, a ruthless determination to destroy the enemies of the Union which he no longer had to prove.

  6. The problem with the implied repeal argument is that there is no conflict between the debt ceiling statute and the appropriation statute. The appropriation could be funded without borrowing over the ceiling, e.g., by tax increases or by cutting spending not specified in the subsequent appropriation statute. This problem seems particularly fatal in light of the very strong presumption against implied statutory repeals. The presumption stems from the fact that it’s easy enough to expressly state that a previous law is repealed if that is the congressional intent.

    Carnap

  7. What George Bush said:

    This sucker could go down!

    And what Jon Chait said (in regards to last night’s speech):

    The most rational explanation for Obama’s speech is that he’s positioning himself for failure. He’s explaining his position so that when Congress fails to lift the debt ceiling, Americans will blame the Republicans and not him. Maybe in the meantime some small deal can arise. But I expect a week from now we’ll be bracing for disaster.

  8. I liked what Brad DeLong wrote at http://delong.typepad.com/sdj/2011/07/what-to-do-about-the-debt-ceiling.html:

    I vote for Calculated Risk’s Option #1: The Treasury’s lawyers should simply announce at 9 am Monday morning that (a) since the Constitution prohibits questioning the validity of the national debt, and (b) since the continuing resolution that mandates spending through September 30 was passed later in time than the restriction on borrowing, that (c) the debt ceiling is a dead letter. This is so by the oldest of the principles of black-letter law: a law inconsistent with a previous law is deemed to repeal the previous law even if it does not do so explicitly.

    An administration that can find lawyers to say that Libya is not “hostilities” and that wanted to reassure markets and reduce economic uncertainty by solving the debt ceiling kabuki theatre debate would have no problem at all with finding lawyers to advance and justify this well-grounded and wise legal interpretation.

    The structure of Tim Geithner’s testimony to Congress defending his additional borrowing is:

    The Constitution forbids me from even thinking about default.
    You ordered me to spend.
    A previous Congress told me not to borrow, but no Congress can bind its successors, and those of you who are in this Congress here now ordered me to spend.
    I’m just doing what you told me to do–and what the Constitution directly and explicitly tells me to do

  9. Henry,

    The reason that Obama might scruple at violating the debt ceiling where he doesn’t scruple at torture is simple: The American people, by and large, support torture. Oh, many of them oppose the *word* “torture”, but the evidence is pretty strong that a clear majority support practices which, in any sane world, are considered torture.

  10. Kevin, I agree, but won’t the American people support him if he violates the debt ceiling to save the economy?

  11. At this point I will need to be convinced that the President is even on the same side as the Democratic Party.

  12. The reason that Obama might scruple at violating the debt ceiling where he doesn’t scruple at torture…

    is because republicans support torture, but not any work-around to the debt-ceiling.
    I noticed Eschaton asked rhetorically yester-afternoon: Have we moved on to the next fake crisis yet?

    Not yet. But we all know what it will be if Obama does any end around the debt-ceiling: Impeachment.
    I’ll bet you dollars to teabags on that…

  13. Were I Obama, even if I fully intended to use some logic to blow past the debt ceiling, the last thing I would be doing is telling people I was considering doing it. That would give every incentive to the GOP to not make a deal and prepare for the fun of impeachment, which is what they want to do anyway. I certainly wouldn’t signal my intention to do so just to reassure the commentators on left wing blogs.

  14. Impeachment, maybe, but not conviction by a Democratic Senate, and it could benefit Obama, as it did Clinton. But even impeachment is unlikely, because Obama’s situation is different from Clinton’s. Obama’s alleged unconstitutional act would not be unequivocally unconstitutional, whereas committing perjury is unequivocally illegal. Obama would do it for the good of the nation, whereas Clinton did it for personal advantage. Most important, the vast majority of the population would have no idea what the controversy was all about. Debt ceiling? What’s that?

  15. Henry… i

    It is all about stopping a Democrat from “presidenting”.
    Gum up the works. Fail to fund the government. Say no to everything. Run out the clock with an impeachment…
    The legality, and traditions of the country, none of that matters….

    I thought this was an absolutely brilliant piece by Paul Weldman
    If you get a chance go have a read. Here is a teaser:

    This audacity gap in American politics can be traced back as far as you like. But in its most recent incarnation, it dates to the disputed 2000 presidential election in Florida. Again and again, Republicans looked at prevailing norms and realized that there was no cost to violating them. It’s true, they might have said, that nobody in this country has ever decided to organize a small riot to intimidate election officials and shut down vote-counting that might not go our way. But what’s to stop us? It’s true, the five conservatives on the Supreme Court might have said, that no Court has ever issued as blatantly partisan a decision as the one in Bush v. Gore, going so far as to write that “our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities,” lest any future appellant try to hold them to their atrocious reasoning. But what’s to stop us? It’s true, Karl Rove might have said, that firing U.S. attorneys if they refuse to turn their offices into arms of the Republican National Committee might never have been done before. But what’s to stop us? Again and again, the answer to the question “What’s to stop us?” turned out to be “Nothing.”

    Brilliant analysis.
    All of it…

  16. If the President cared about achieving any outcome that we would recognize as a win, he would have invoked the 14th Amendment already. That would get cash flow back on track, and make the hostage vanish in the Republicans’ hands. They might use it as justification to impeach him, but we all know they’re going to do it anyway, so that’s hardly a deal-breaker. And it’s not as if the Democrats are getting a better deal the closer we get to August 2. Nobody thinks the Republicans are going to back down at the last minute; everybody thinks Obama will give in.

    So either he wants a deal that slashes social spending, or he wants default.

  17. @tom in ma: I agree. But not telegraphing something is different from ruling it out. Now if he does it he looks like he’s flip-flopping and indecisive.

    @Carnap: there is just as much of a constitutional problem in the President unilaterally making selective cuts if the Treasury runs out of money as there is in incurring new debt. See, e.g., Clinton v. New York (1997). Either way, Congress is forcing the President to break a constitutional principle. The question is: which one will he do?

  18. Now wait a minute. Maybe I spoke too soon. There may be a different statutory argument here, and it’s one that I’m not sure I’ve seen before. The conclusion would be a relatively modest unilateral power of the Senate to extend the debt ceiling cleanly without action by the House of Representatives. Even though the power would be quite limited, it’s an interesting chain of reasoning and since the issue is an important one, it can’t hurt to spell it out. This is a bit complex, so please bear with me here. The statute imposing the debt ceiling is 31 U.S.C. sec. 3101(b). If you look at that statute it provides that the amount of the debt limit may be altered, among other ways, “through the congressional budget process described in Rule XLIX(1) of the Rules of the House of Representatives.” Now here’s the thing. Rule XLIX was repealed by resolution of the House of Representatives back during the Clinton administration. So that’s a dead letter, right? Not so fast. First, can the unicameral action of the House abrogate the bicameral statute authorizing the use of the XLIX procedure in section 3101? I think not. But second, and more importantly, 3101(b) authorizes modification of the debt limit according to a “process” that was set out in XLIX — it does not say that the ceiling may be changed “pursuant to” XLIX. So it seems to me reasonable to say that 3101 authorized change of the debt ceiling by a process, and the reference to the rule merely indicated the process contemplated by the statute. In which case the availability of the specified procedure would survive the repeal of the rule.

    So suppose the XLIX process is still good. What is it? Well, you first need to step back and look at section 301 of the Congressional Budget Act of 1974, which says that Congress has to “complete action on a concurrent resolution on the budget” each year, 2 U.S.C. sec. 632(a), and the concurrent resolution has to specify, for “at least 4 of the ensuing fiscal years,” information including “the public debt” for those years. Id. sec. 632(a), (a)(5). (Section 304 allows this concurrent resolution to be updated or amended in between official concurrent resolutions. See Id. sec. 635.)

    This is where XLIX comes in. That rule provided, in subsection (1), as follows: “Upon adoption by the Congress (under section 301 or 304 of the Congressional Budget Act of 1974) of any concurrent resolution on the budget setting forth as the appropriate level of the public debt for the period to which such concurrent resolution relates an amount which is different from the amount of the statutory limit on the public debt that would otherwise be in effect for such period,” then the clerk of the House has to issue a joint resolution increasing the statutory limit accordingly, and “[t]he vote by which the conference report on the concurrent resolution on the budget was agreed to in the House (or by which the concurrent resolution itself was adopted in the House, if there is no conference report) shall be deemed to have been a vote in favor of such joint resolution upon final passage in the House of Representatives.” This joint resolution raising the debt ceiling “shall be deemed to have passed the House of Representatives,” and the Senate can adopt it and pass it along to the President for signature. The basic effect here seems to be that you can take the debt amount specified in the concurrent resolution and deem it to have passed the House as a hike to the debt ceiling.

    Okay, so next we take a look at the concurrent resolution. As I understand it, the current statutory debt ceiling is $14.294 trillion. But if you look at the concurrent resolution for 2010, it provides that, for fiscal year 2011 (and I hope I’m looking at the final, enacted version), “the appropriate level[] of the public debt” is specified as $14.349372 trillion — a full $55.372 billion more than the statutory limit. (I believe that the Congress has not passed a concurrent resolution for 2011. Is that right?) So if you assume, per paragraph 1 above, that the process set out in XLIX remains a statutorily valid means to raise the debt ceiling under section 3101, I think it follows that, as a matter of law, the Senate should really be able to force a “clean” debt ceiling hike from $14.294 trillion to $14.349 trillion. Now the next question is whether that additional amount of debt would be enough to carry us over until September when fiscal year 2012 starts. At that point the resolution and Rule XLIX procedure would give us a whopping $15.277119 trillion ceiling, which could similarly be adopted by the Senate without House action under this theory. How far would that additional amount take us? I don’t know. Probably not all the way through 2013, which was President Obama’s big criterion. Obviously none of this is ever going to happen, and who knows if it’s even right. It seems to me that the biggest variables are the legal issue whether the statutorily authorized “process” mentioned in 3101 survived the repeal of Rule XLIX and whether I was looking at the right, final document when I pulled the numbers out of the 2010 concurrent resolution.

  19. Carnap, you seem to have trouble grasping a fundamental point: We have a Constitution. It’s the “highest law of the land”, which is to say that it trumps legislation. There’s no way legislation can possibly give the Senate the power to enact anything unilaterally in the teeth of the Constitution’s requirement that legislation pass both chambers.

    Why is the President torturing people, but unwilling to resort to this specious “14th amendment” option? Because the torture is deniable, if he doesn’t admit to it most people won’t be sure he’s doing it. While he’d have to usurp Congress’ power to borrow out in plain sight, based on an argument even most of his ardent supporters think is BS.

    While he’s cool with violating the Constitution, he doesn’t want the majority of the American people to be sure he’s violating it. That’ might have electoral consequences, as the Constitution, no matter how much it irritates a lot of liberals, is more popular than he is.

  20. Brett, since section 3101 satisfied the requirements of the Article I Presentment Clause, it would be Constitutional to provide that one of the bodies’ votes on a measure a would be deemed approval of a related measure b. The house members would be on legal notice that their approvals of the concurrent resolution would have that effect. This would be on a much more solid footing in that respect than the weird “deeming” thing they were talking about back during the healthcare thing.

    Carnap

  21. Carnap, it has always been understood that the Presentment clause requires both Houses to have passed the same language. Not merely language on the same subject, or of generally related meaning. “A bill” to have passed both chambers much have been voted on by both chambers as the same bill. The closest thing to an exception to this is the “enrolled bill” doctrine, which merely holds that, if the leadership of both houses claim that they have passed the same language, the courts will not inquire as to whether they are lying. But even this involves at least the pretense that both houses have passed the same language.

    This wild flailing around for some way to make the fact that one chamber of the legislature is presently held by a different party irrelevant is hilarious. After the next election I expect it to progress to rationalizing outright dictatorship, should Obama manage to stay in office, but the Senate goes Republican.

  22. I’m a Republican, too, Brett, and I join you in hoping we reclaim the presidency and the Senate next year.

    Carnap

  23. I think the only thing we can hope for is the Obama administration citing previous precedent on impoundment and the 14th amendment and continue to fund the debt and shut down all other government spending. Everything else but debt is held until the ceiling is lifted. I doubt this will happen, but that would at least avert default, which is a de facto tax increase.

  24. Oh, one more thing, Brett. There’s no “same language” problem, because the same text is adopted by all three. The text of the joint resolution is deemed passed by the House. The same text is then actually adopted by the Senate, and the same text is signed by the President.

    Carnap

  25. “….but that would at least avert default, which is a de facto tax increase.” Shutting down government spending as you suggest would also be a de facto tax increase.

  26. As a prior supporter of the 14th amendment “option” the problem is that Congress is explicitly granted enforcement over the 14th Amendment. Section 5 of the 14th says: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Hence the need for the (previously) pro forma vote from Congress to raise the debt ceiling. Therefore, for the president to unilaterally extend the debt ceiling he would need to invoke some other authority.

  27. Henry says:

    “Impeachment, maybe, but not conviction by a Democratic Senate, and it could benefit Obama, as it did Clinton. But even impeachment is unlikely, because Obama’s situation is different from Clinton’s.”

    There’s an old saying that an impeachable offense is whatever a majority of the House thinks it is. And this is a GOP who clearly regards any and all Democratic Presidents as illegitimate. So I’d expect impeachment. And I’d expect Obama to benefit.

    My money is on some sort of semi-shutdown, with Obama and his officials doing their best to strategically target the pain.

  28. I’m with Tom on one thing: if the president has some kind of strategy for blowing past the deadline, it would be incredibly stupid to say anything about it before then. The spin would turn negative, the ratings agencies would insist that the debt limit was meaningless and only the deficit mattered, and the Gang of Five would be right there to issue an injunction.

  29. For maybe the first time, I disagree with Brett. I still think there will be an eleventh hour deal and it will be along the lines of the Reid proposal. Dems will celebrate the (temporary) skating for entitlement programs. Obama will claim that “reason” prevailed. Boehner will admit that the GOP did not get what it wanted, and that proves the necessity for a GOP victory in 2012. This will be red meat for the Tea Party folks, whose energy will only redouble for the 2012 campaign. It will pave the way for Cantor to succeed Boehner and DeMint to succeed McConnell.

    Question is who benefits in the Presidential campaign? Romney cause it’s his turn? Perry? A movement to draft Christie, Kasich, or someone else? It almost doesn’t matter. The anti – Obama vote will start at close to 50%.

  30. Well, it all depends on whether you are a Leninist or not, doesn’t it?

    There is a very loud strain of thought in contemporary American discourse that claims all political problems can ultimately be resolved through negotiation. I’m not sure where this comes from — my guess is it comes from the Economization of American culture, and the consequent belief that everything can be mapped onto Coase. The problem is that this claim is utterly unfounded in reality — most obviously the US saw precisely how this did NOT happen in the case of the Civil War. And in plenty of other cases, the US doesn’t remember a failure of politics because it was on the winning side, whether the Mexican-American War or the Spanish-American War.

    We have a certain population, the Tea Party, who are most certainly Leninist, who live for heightening the contradictions so as to hasten the day of gotterdammerung, followed by the (econo-political) rapture. How DOES one deal with substantial fraction of one’s population who hold such a belief?
    I’ve advocated for a while now that attempting to stave off the inevitable is not just a waste of time but positively counterproductive. Each day that delays the inevitable is a day that increases the power of the wealthy and their ability to shape the future, and a day that increases the magnitude of the final disaster.

    So if Obama is refusing to allow the use of gimmicks, personally I say good for him. IMHO, now is PRECISELY the time to double-down on the democratic side — present your final offer as consisting of getting rid of every damn tax loophole in existence, removal of the Bush tax cuts tomorrow, and a return to Eisenhower tax rates. And if the Republicans don’t like it, well, they’re going to get what they’ve been hankering for for twenty years, and we shall see who is most popular by the end of it.

    If you don’t like this plan, complaining about it is not an option. Explain to me how YOU would deal with the points I have made:
    – the Tea Party WANT a destruction of the US government, and if they can’t get it today, they will try for it tomorrow
    – each day that delays the inevitable is a day that increases the power of the wealthy and their ability to shape the future, and a day that increases the magnitude of the final disaster.

  31. And the hits just keep on a comin’: “Before Mr. Boehner postponed the vote on his measure, the White House had sent a two-sentence message to Congress, saying that if the Boehner bill landed on Mr. Obama’s desk, “the president’s senior advisers would recommend that he veto this bill.” ”

    In other words, “Try me, I may or may not veto it.”. Correction Mr. Obama, I think you meant to say “If it comes across my desk I will veto it.”, right? That would be consistent with your minimum bar of no short-term rise. He won’t even support his own positions!

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