Attack of the Giant Killer Debt Limit Tomatoes II

The Democratic platform should declare the debt ceiling unconstitutional (repeat).

The White House and the House Republicans are shaping up for another game of chicken this winter over raising the debt limit.

I already offered My Plan in February, as part of a bracing short list: the Democratic platform for the November election should declare the debt limit to be unconstitutional under Section 4 of the 14th Amendment.

As well as a ridiculous third wheel: everybody else gets on without one. You vote the spending, you vote the taxes, you’ve already voted the debt. Wer A sagt muss auch B sagen.

An electoral mandate would short-circuit the legal arguments addressed in posts by Jonathan Zasloff here and here, with links to Bartlett, Adler, Balkin, etc.

A re-elected President Obama could politically ignore any legislation coming out of Congress purporting to impose such a limit, and would direct the Treasury to act accordingly.

The GOP could always try to litigate the issue to the Supreme Court. A ruling to reimpose the debt limit retroactively – itself a direct violation of the 14th Amendment, as it would invalidate some existing debt – would cause an instant global financial catastrophe. So the Roberts court would surely back plutocratic rather than Teahadi conservatism. They might even be spooked into not taking the case on standing grounds.

Author: James Wimberley

James Wimberley (b. 1946, an Englishman raised in the Channel Islands. three adult children) is a former career international bureaucrat with the Council of Europe in Strasbourg. His main achievements there were the Lisbon Convention on recognition of qualifications and the Kosovo law on school education. He retired in 2006 to a little white house in Andalucia, His first wife Patricia Morris died in 2009 after a long illness. He remarried in 2011. to the former Brazilian TV actress Lu Mendonça. The cat overlords are now three. I suppose I've been invited to join real scholars on the list because my skills, acquired in a decade of technical assistance work in eastern Europe, include being able to ask faux-naïf questions like the exotic Persians and Chinese of eighteenth-century philosophical fiction. So I'm quite comfortable in the role of country-cousin blogger with a European perspective. The other specialised skill I learnt was making toasts with a moral in the course of drunken Caucasian banquets. I'm open to expenses-paid offers to retell Noah the great Armenian and Columbus, the orange, and university reform in Georgia. James Wimberley's occasional publications on the web

34 thoughts on “Attack of the Giant Killer Debt Limit Tomatoes II”

  1. Yeah, sure, why care if your arguments make any sense. It’s not intended to win on the legal merits, anyway, just to provide a little cover for the judiciary to approve of the executive usurping a legislative function.

    The “debt limit” is a limited delegation to the executive of Congress’ power to borrow. Rather than specifically approving of each particular act of borrowing, Congress streamlined the process by pre-approving borrowing up to specific limits. Abolish the debt ceiling, and rather than allowing the executive to borrow at will, you’re back to the situation which prevailed for most of the nation’s history, where each individual bond issue had to be approved by an act of the legislature.

    It’s kind of like getting your line of credit revoked; It doesn’t free you from that annoying limit, it transfers all the discretion back to the bank, in this case Congress.

    But, yeah, it was kind of expected that Democrats would react to the prospect of losing control of the legislature by making excuses for the President exercising dictatorial power.

    1. It would come as news to the finance ministers of every other country that they are exercising “dictatorial powers” by faithfully executing their legislated budgets.
      BTW, you may not have noticed that my proposal is not to “make excuses” for an expanded Presidential prerogative, but to seek a popular electoral mandate for a commonsense interpretation of the US Constitution.

  2. Brett,
    I’m not sure about the Constitutional law here, but I think you’ll agree that Congress also has independent powers to spend and tax. Spending=taxation+borrowing. This isn’t law; its accounting. If Congress explicitly authorizes spending of 10, and taxation of 7, what does it mean to say that Congress has refused to explicitly authorize borrowing of 3?
    Damned if I know; something is logically impossible here. But what?

    1. You make the fundamental error of assuming Republicans use actual logic and arithmetic in formulating their proposals.

      1. I also made a fundamental error of arithmetic. I should have said: Spending+saving=taxation+borrowing. However, since the US doesn’t have a sovereign wealth fund or a rainy day fund, my sloppy arithmetic was good enough for federal government work.

  3. Two points.

    1. The President, and the Democrats, failed to frame this properly last time. Failing to raise the limit isn’t a matter of simply not borrowing more money — it’s about welching on existing contracts and debts. This the United States has never done at any time in its history.

    2. The President should draw up a list of contracts payment on which must be suspended in case the debt limit isn’t raised. These should not be across the board. On the contrary, they should fall in as focused a manner as possible on contracts with companies headquartered in districts and states represented by opponents to raising the debt limit, and most specifically on contracts for work being carried out in those states and districts — the point being that those who refuse to pay their contracts and debts must accept the cost of doing so, they can’t expect that those of us who are willing to accept our legal responsibilities to pay for their fecklessness.

    1. Exactly. The GOP stance was nonsense, implying that the President had unlimited power to spend and the debt limit was the only constraint. Yet lots of people bought it, because Obama was ineffective in making his case to the public.

      Playing the kind of hardball you suggest is a good way to bring home the realities. “You want me to exercise a line item veto? Fine. Here are my cuts. Too bad about that defense contract but hey, got to redcue spending somewhere.”

    2. Agreed, and I’d go further: the President should demand the permanent repeal of the debt limit. By “demand” I mean he would say “I won’t sign any legislation at all until I first sign the repeal of the debt limit.”

  4. Congress says that we should raise $7, spend $10, and only borrow $1. It’s not clear to me what Brett — or the GOP — thinks should be done to square this circle.

    Of course, Congress could amend those numbers, to bring them into compliance with mathematical reality.

    But if Congress doesn’t, then someone else has to do something. I see only four possibilities:

    (1) The president instructs the treasury to ignore the debt limit, and follow the laws passed by Congress to allocate spending and taxation.

    (2) The president assumes the power to unilaterally cut spending on whatever programs she/he chooses, down to the level needed to comply with the debt limit.

    (3) The president assumes the power to unilaterally raise taxes however she/he chooses, up to the level needed to comply with the debt limit.

    (4) The government has to basically print more money (perhaps Matt Yglesias’s trillion-dollar platinum coin?) and hand it over to the treasury, which can use it to pay down the debt until it’s below the limit.

    Of the four options, (1) involves the least expansion of presidential power. Either (2) or (3) would give the president vast new powers to meddle in the details of taxation and spending, things that the Constitution specifically assigns to Congress. And (4) of course would open a whole nother can of worms.

    So it’s wryly amusing to see Brett Bellmore implicitly arguing in favor of (2) or (3) or (4), while claiming that he’s trying to prevent the president from assuming dictatorial power.

    What Brett actually wants, I’m guessing, is for a hypothetical future Republican president to be able to unilaterally slash spending on stuff that Brett doesn’t approve of. Meanwhile, Larry wants a Democratic president to be able to punish GOP lawmakers by unilaterally slashing spending on their districts. Either way, we’ve entered a brave new world of expanded presidential power.

    I don’t think we want an imperial presidency. The least “dictatorial” outcome would be for the president to ignore the debt limit, for someone to challenge this, for the supreme court to take up the case, and for the court to rule that the debt limit has no validity if it conflicts with the laws passed by Congress that specify the details of spending and taxation.

    1. I was going to remind readers of the trillion-dollar platinum coin solution, but J beat me to it. I think this solution is more in keeping with Obama’s non-confrontational personal approach, since there seems to be no question of its legality. Also, it would provide him with much more room for maneuver.

    2. Brett wants to believe, or at least pretend to do so, that there is some presidential response to a failure to raise the debt limit that isn’t either illegal or, in the case of the platinum coin, just a dodge around the law. To the best of my knowledge, he’s never actually laid out what he thinks the response would be.

      1. Based on past comments, I think his idea is that the President should simply cut whatever spending he feels like cutting to stay under the limit.

        1. I seem to remember him saying that, but also saying that Obama shouldn’t really have full discretion on what to stop paying. He’s never laid out what he means by the combination of these two ideas.

      1. The coin idea is very clever. But it’s a low dodge, and Obama could hardly put it in his platform. I have the feeling he would think it beneath his dignity, unless all else fails. Running in defence of the Fourteenth Amendment as a whole would fit his image of himself.

    3. “What Brett actually wants, I’m guessing, is for a hypothetical future Republican president to be able to unilaterally slash spending on stuff that Brett doesn’t approve of.”

      This exactly!

    4. The problem is indeed that Congress, in it’s lazy, inconsistent way, has put the President in a bind when it mandates spending without providing enough taxes and/or borrowing to pay for it. But the two (or more) horns of the dilemma aren’t equal: The President, by failing to engage in mandated spending, violates statutes. But the debt limit is not a statute telling the President not to borrow more than X. It is a statute authorizing the President to borrow up to X, where the borrowing power is constitutionally delegated to Congress, not the President. Similarly the laws authorizing the President to levy certain taxes are statutes, but the power to tax is constitutionally delegated to Congress. Indeed, while the President wages war, the power to declare war belongs to Congress; So the President violates a statute if he doesn’t prosecute a war Congress declares, but the Constitution if he prosecutes a war Congress didn’t declare. (Such as in Libya.)

      Given a choice between violating a statute or the Constitution, the President obligated to violate the statute. He can no more solve the conflict by levying taxes Congress has not enacted, (And why is THAT not the solution the left proposes? Too obviously a usurpation?) or issuing bonds Congress hasn’t authorized, than he can on his own initiative invade and sack Canada to close the gap. If he has to violate either a law or the highest law of the land, he has to violate the law.

      1. The President is constitutionally mandated to “take care that the laws be faithfully executed,” yes?

        Anyway the situation is much more complicated, as usual, than you allege. Were Libya (or the Balkans or Somalia or Grenada or Panama or Vietnam or Korea or the Philippines or all the other smaller and undeclared wars we’ve fought) violations of the Constitution? Neither Congress nor the Courts said so, nor did Congress cut off the funds for these actions.

      2. That’s quite a dodge, Brett. The power to authorize spending is also constitutionally given to Congress. There is no way in which the executive deciding not to spend what Congress has told him to (and it is not just an upper limit; appropriations legislation contains a lot more specifications than that) is any less of a constitutional violation than it is for him to borrow more than they have authorized in order to conduct mandated spending.

        1. That’s right, and because the power to authorize spending is constitutionally given to Congress, the President violates the Constitution if he spends on something Congress hasn’t authorized. But only a statute if he doesn’t spend on something Congress DID authorize.

          Seriously, if the passage of contradictory statutes by Congress entitles the President to affirmatively usurp powers delegated to Congress, why couldn’t the President resolve the contradiction by levying a tax Congress didn’t enact? Or by waging a war Congress didn’t declare, and bringing home booty?

          Is it just that the other ways of resolving the contradiction are too obviously usurpations? Or is there some principled distinction you see between unauthorized borrowing, and unauthorized taxation?

  5. So the Roberts court would surely back plutocratic rather than Teahadi conservatism.

    A vivid phrasing of the Catholic Court’s core dilemma James…
    Believing this, does that mean you think the Black Robes will also back Obamacare?

    It’s not to late to go the record with a prediction.
    You know mine:

    My prediction is 6-3 in support of the legislation with Roberts and Kennedy joining the majority. 
My reasoning is simple: Obamacare is Capitalism’s last gasp effort to do health care.
 And we know one sure thing about our country: Capitalism must be given every chance to solve a problem it is incapable of solving.
 A 6-3 opinion allows the right-wing ideologues to have it both ways.
 It is how they can best compromise with themselves: 1) The dissent gives Scalia, Thomas, and Alito a chance to tear things up with their small government canines. 
2) Writing the majority opinion gives Roberts a chance to temper all enthusiasm for the Act while giving Capitalism another 10-20 more years to prove it can’t do health care insurance.

    1. I’ve made the same prediction here in comments (can’t trace it) on slightly different grounds. Kennedy will uphold ACA because he’s a temperamental small-c conservative and doesn’t want to be responsible for a chaotic revolution in a tenth of the US economy. Roberts will join the majority so as to be on the winning side and decide who writes the opinion. He will want the historic opinion drafted as narrowly as possible, not by Sotomayor (say) laughing the plaintiffs out of court. Scalia’s unpredictable – he’s stuck with his own opinion in Raich.
      Say what you like about the Supremes, they run an amazingly tight ship. Nary a whisper about the conclusion they must have come to already.

      1. Wishful thinking, maybe, but I’m inclined to agree with this analysis. Is there any reason to believe that if it turns out that way that Roberts would try to persuade Scalia or Alito to join the majority as well? How do these things work? What’s the value of a concurrence vs. a dissent?

    2. I think this is a highly likely outcome. I think Roberts would prefer to strike down the law because it would help Republicans and hurt Obama and those are things he prizes, but if Kennedy votes to uphold, Roberts will join the majority and write the opinion.

      1. This is just more of the same mental block that made the oral arguments so shocking to liberals. No, there’s no particular reason to think that Roberts is searching for an excuse to issue a ruling liberals would like, and it’s just a question of how he’ll rationalize it.

        1. What makes the arguments so “shocking” to a non-lawyer is their casuistry (in the non-legal and pejorative sense).

          But perhaps we need some time in libertarian heaven every few generations in order to remind ourselves why we don’t actually want to live there.

        2. I think you are missing the argument. Roberts is certainly looking for a decision that will serve Republican interests. This is probably to strike down but we can’t be certain: Roberts is not a Tea Party idiot and ACA is a conservative, business-friendly, historically Republican initiative, even though it was adopted and pushed through by a black Democratic President. My speculation is that if there’s a majority to uphold, Roberts has got a strong tactical motive to join it. We’ve placed our bets, now we have to wait and see.

          1. Interesting how you’re taking it as an absolute given that the 4 liberal justices are going to vote to uphold, but don’t see anything the slightest bit political about it.

            My take is that Roberts probably thinks the ACA is unconstitutional, for generally the same reasons so many conservatives do: If THIS is constitutional, what the heck isn’t? He certainly sees no personal downside in voting to strike it down. You can’t fire him, you can’t cut his pay, and even taking a dive wouldn’t make you like him, the only people whose respect for him is in play are the conservatives. This isn’t the New Deal, Obama’s never going to be given an opportunity to pack the Court, so there’s no motive for a Switch.

          2. This is because it doesn’t look any different from, say, Medicare, or for that matter the home mortgage deduction, to the rest of us. The difference between a “penalty” on people who don’t purchase insurance, a “tax” on those people, or a “tax rebate” for people who do, looks like a distinction without a difference — unless you’re looking for a reason to throw the act out.

            Of course, if I’m not mistaken, you believe Medicare is unconstitutional as well and should be struck down… go for it!

          3. “Roberts is certainly looking for a decision that will serve Republican interests.”

            Fact or opinion? Roberts may consider himself above partisan politics.

  6. If we’re predicting the judges in the ACA case, I’ll contribute my own two bits.
    Kennedy is torn between his libertarianism and his very genuine small-“c” conservatism. His vote is independent of Roberts’. Call it 50-50.
    Roberts is torn between his Republican hackishness and his very genuine concern for the institutional legitimacy of the Court. Call it another 50-50. But he will not be on the losing side of a 5-4 Supreme Court. So he is 75-25.
    This means:
    A one in four chance of 5-4 in favor of the ACA, written by Roberts.
    A one in two chance of 6-3 in favor of the ACA, again probably written by Roberts.
    A one in four chance of 5-4 against ACA. I’m not sure who would write this.

  7. “Roberts is torn between his Republican hackishness and his very genuine concern for the institutional legitimacy of the Court. Call it another 50-50. But he will not be on the losing side of a 5-4 Supreme Court. So he is 75-25.”

    Have you considered that the conservatives on the Court probably think that institutional legitimacy and Republican hackishness agree in this case?

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