May 24th, 2012

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.

19 Responses to “Attack of the Giant Killer Debt Limit Tomatoes II”

  1. Brett Bellmore says:

    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.

    • James Wimberley says:

      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. Ebenezer Scrooge says:

    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?

    • Byomtov says:

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

      • Ebenezer Scrooge says:

        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. larry birnbaum says:

    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.

    • Byomtov says:

      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.”

    • Don says:

      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. J says:

    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.

    • marcel says:

      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.

    • 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.

      • Byomtov says:

        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.

    • Herschel says:

      Yglesias got the trillion dollar platinum coin idea from Jack Balkin.

      • James Wimberley says:

        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.

  5. koreyel says:

    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.

    • James Wimberley says:

      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.

    • Herschel says:

      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.

Post a Comment