July 30, 2011

Why should Obama think in terms of what the Supreme Court might say about his power to single-handedly raise the debt ceiling?

Jeffrey Rosen wonders, noting that the Supreme Court would probably not hear the case.
And even if the justices did agree to hear it, the conservative justices would be torn between their dislike of Obama and their commitment to expanding executive power at all costs. If all the justices are true to their constitutional philosophies, the Court would rule for Obama by a lopsided margin.
In fact, it makes plenty of sense for Obama to refer to what the Court would say even if he doesn't believe the question will end up in court. Why shouldn't he act deferential to judicial interpretation when it's not obstructing anything he presently wants to do? It's exactly the right time to strike that pose if he thinks it's flattering.

Anyway, Obama left himself plenty of room to shake off the deference if and when he wants. All he said was: "I’ve talked to my lawyers... They are not persuaded that that is a winning argument." Not only could the lawyers later become persuaded, Obama could make his own decision disagreeing with his lawyers, and he could decide to rely on a reading of the Constitution that he believes is correct even if he's not persuaded it's a "winning argument."

Now, is it true that the Supreme Court would say the President can, on his own raise the debt ceiling? The constitutional hook for this power is "The validity of the public debt of the United States, authorized by law … shall not be questioned." Rosen says:
All four liberal Justices are committed to a vision of “living constitutionalism” that interprets the historical evidence broadly...
He says a bit more than that, but not much to find 4 votes for presidential power. Only one more needed.
What about the conservative justices? Here the divisions in the conservative ranks might become relevant. There are three distinct strains of legal conservatives on the Court: the tea party conservative, Clarence Thomas, the libertarian conservative, Anthony Kennedy, and the pro-executive power conservatives, John Roberts, Samuel Alito, and Antonin Scalia.
The tea party conservative, eh?
Of these five justices, Thomas is the only one whose judicial philosophy might lead him to side with Congress over Obama. As someone who believes that Congressional power over the purse should be construed strictly, Thomas might conclude that Article I gives Congress, and not the president, the power “to borrow money on the credit of the United States”—a power that it has exercised by establishing a debt ceiling. The debt ceiling doesn’t repudiate the debt or question its validity, Thomas might hold; it simply threatens default by prohibiting the president from assuming extra debt beyond what Congress has authorized. According to this argument, Obama’s unilateral decision to take on additional debt to avoid a government default would not represent debt “authorized by law,” as the Fourteenth Amendment requires, and therefore wouldn’t be justified by the Amendment.
Isn't it funny how this "tea party" philosophy just sounds like a fair reading of the text? But only Clarence Thomas is crackpot enough to do that! I added the boldface to highlight what to me seems like the obvious interpretation: No one is talking about questioning the validity of the debt! When you fail to pay debts, you're not claiming they aren't valid. Why wouldn't all the Justices say that? Why would that inapt clause take precedence over the specific and clear clause in Article I, listing among Congress's powers the power "To borrow Money on the credit of the United States"?

60 comments:

mesquito said...

And even if the justices did agree to hear it, the conservative justices would be torn between their dislike of Obama and their commitment to expanding executive power at all costs.

That's just plain dishonest bullshit.

Michael K said...

These are all tactical statements to try to gain political advantage. I doubt the Treasury could sell bonds issued without Congress' approval.

Eventually, the maneuvers will end with some combination of Reid and Boehner so each can claim credit. It's a hell of a way to run a railroad.

mesquito said...

There are three distinct strains of legal conservatives on the Court

Should read: "For the purposes of fleshing out this partisan crap in a middlebrow magazine, please pretend there are, today and for this purpose only, three distinct starins of legal conservatives on the Court."

Barry Dauphin said...

the conservative justices would be torn between their dislike of Obama...

One can stop reading the article right there. Does Rosen actually believe that or is he simply explaining that if he were a sitting justice, his dislike of an office holder would greatly influence his opinion. And yet folks like Rosen keep getting to earn a living write stuff like this.

gadfly said...

Nope. Treasury cannot sell bonds without approval -- but they can mint a couple of TRILLION DOLLAR COINS.!

Oso Negro said...

Isn't it funny how this "tea party" philosophy just sounds like a fair reading of the text? But only Clarence Thomas is crackpot enough to do that!

In these times, a fair reading of the text is dangerously radical.

Carol_Herman said...

Yes. I think this is it.

But it doesn't exactly work, IF the congress critters are forced to WRITE THE LAWS THAT PAY ALL THE OTHER BILLS!

The HEAT is on!

This is not Christmas Eve "Obamacare" being staged. This is FAILURE.

Or what Broadway produces know when they've spent a fortune ... and their show is not a hit!

Will they pace the lobby opening night? Will they eat at Sardi's? Will Brooks Atkinson write a positive review? (NO! He's dead!)

But if past history serves us well ... A president usually wants people following him!

Nixon didn't have this. (Even though he got blown in the second time on a landslide!)

Jimmy Carter didn't have it, either.

And, the turd Bush Family was hoping they could push Reagan out for good ... back in 1974.

You know, of course, what they say about the "best laid plans," don't cha?

Can Obama be countered? He probably sees Obamacare hasn't been turned back.

He's playing politics.

THE BEST LAID PLANS OFTEN GO AWRY

FULL SPEED AHEAD. DAMN THOSE LAID BACK TORPORS.

edutcher said...

I'd love to see Nerobama try it and run into a 6th "No" vote - Ruth Bader Ginsburg telling the Lefties who can't wait for her to hit the death panels to go take a flying leap for themselves.

Lyle said...

Jeffrey Rosen is a partisan. Ipso facto he must promulgate stupidity a lot of the time.

traditionalguy said...

Fact 1: The economic stabilization that started in early 2010 reversed and has been falling into recession fast since March 2011.

Fact 2: the EPA co2 regulations have fired deadly delayed fuse into the American economy this year.

Fact 3: we have been in default since we began to permanently borrow money to pay our borrowed debts.

But why give the Obama Gang an easy out by using the Tea Party to trigger a legitimate world distrust of dollars by stopping the scheme now.

Wait until after a Conservative has been elected President. Then we do what we have to do.

We cannot recall Obama and Reid in 2011 by acting angry. We have to wait it out.

Wait until the right time. Otherwise we will have given away everything out of pride that we alone are so smart.

Carol_Herman said...

I'll throw a question into this mix.

Obama has to bring out his teleprompter and give a speech.

What will he say? "Because Congress can't agree ... and the sky is falling ...

Scratch that.

Hello America. Today, I took action to save the country. Today, I am Abraham Lincoln.

Maybe, he'll announce he's got the Supreme Court going along with this. Because he's the president.

And, then, for the next act. When he plays golf, he wins. And, never has to put a ball on the ground. It's just a question of his pulling out of the air ... the score he wants to score at the end of the game.

At least Boehner put PLANS TO VOTES!

Plenty of Congressional plans already there. Like golf balls.

Tom said...

The constitutional hook for this power is "The validity of the public debt of the United States, authorized by law … shall not be questioned."

Bleep, bleep, and more bleep. The 14th Amendment is about existing debt. The debt ceiling says the executive can not create more debt.

Carol_Herman said...

Drudge has up a headline saying MOODY SAYS NOBODY'S PLAN WILL WORK.

So, tell me? Has the bride been left at the alter?

What happens if it was just bad timing not to take the compromise?

If we had been viewing a boxing match, Reid didn't land a glove on Boehner.

Lightweights. It's like watching feathers fly.

Sam Hall said...

Let us say that you have been living beyond your income by increasing your credit card debt. Now you have hit the limit on your card. You try to talk the bank into more credit, after all, you have a AAA credit rating. They say no.

So what happens? You just can't spend more than your income less the card payments.

This is exactly the position the country is in.
Now, the spending for the rest of the year is a problem since those bills have already passed, but next year, Congress will have to decide what to fund and what not to fund.

I think the only things that are on auto pay is interest on the debt and Social Security.

Hagar said...

That paragraph in the 14th Amendment is there because at that time the validity of the debt was being questioned.

The Lincoln administration with Salmon P. Chase as Secretary of the Treasury printed a mass ao "greenbacks" to pay for the Union's costs of the Civil War. After the war, with Salmon P. Chase as Chief Justice, the Supreme Court ruled that the Lincoln administration had had no legal right to do this, which naturally led a bunch of people to claim that the "greenbacks" were worthless (and they presumably would not have to pay off loans they had incurred in "greenbacks," I would guess).

The paragraph in the 14th Amendment put a stop to this nonsense, and that was all it was about.

Carol_Herman said...

Yes, Hagar.

That's why Obama's teleprompter will pump out "Tonight I am Abraham Lincoln."

You know, LBJ always knew when he was Senate Majority Leader ... that you told the President (Eisenhower), what the votes were! So Eisenhower never went to the People to ask for anything that couldn't pass the Senate.)

Can't anybody in the democrapic party play politics anymore?

ricpic said...

Isn't the amount coming into the treasury monthly many times over the amount required to service the debt? This whole "crises" is surreal in that there is no crisis providing the government makes cuts in discretionary spending after the bondholders are paid and social security is paid. The refusal to make cuts in discretionary spending is a manufactured crisis.

ricpic said...

"crises" should be "crisis"

Eric said...

I would love to see Obama try to pull this crap. It would guarantee a drubbing worse than Carter's in 2012.

I was going to ask how people this mendacious survive in journalism, but then I see it's TNR.

PaulV said...

Who would buy unauthorized bonds that would not be backed by full faith and credit of United States, anyway.

Will Cate said...

re: "No one is talking about questioning the validity of the debt! When you fail to pay debts, you're not claiming they aren't valid."

I made this same point to Dave Winer over on his blog a couple of weeks ago, when he started going off on "invoking the 14th Amendment" ... the way I see it, there is nothing there to "invoke."

AST said...

It would be a quick road to impeachment, even if they couldn't get a conviction. The fact that Clinton endorsed this approach should be warning enough.

I'm not so sure the SCOTUS would refuse it, either.

Penny said...

If only our Government's debt responded to turning up the volume...

Or turning down the volume...

Or even changing the venue or the channel.

Here's what we need to remember...

There are NO "free" concerts in Washington DC.

We all PAY...one way or another.

Penny said...

So tell me? How does it feel to have some "skin" in this game?

ken in sc said...

I think it would be like FDR trying to pack the court. It's a step too far, even for a popular president. Which Obama is not anymore.

Penny said...

There's so much "skin" is this GAME, that some might say our country's gone pornographic.

rhhardin said...

I'd say the constitutional remedy is impeachment, which is up to Congress.

chickenlittle said...

Impeach rhymes with overreach.

Hagar said...

I would think the Government would be obliged to pay out at least as much as is being taken in by payroll taxes for the purposes they were enacted to serve. After that, the O and TurboTax Timmy might have some tough decisions to make.

Now, I am dead in the water for earning an income, since there is no construction activity to speak of (so much for the "stimulus"!), so I must figure to live on my SS checks. If they are reduced by 5-10%, so be it. In the meantime I take care not to buy anything with plastic that I cannot pay off the next due date. If I have no reasonable expectation of earning an income to pay off any new debt, this is no time to incur any.

The Democrats do not see it that way. They have spent every dime they took in, or could borrow, during the fat years and more, and now they want to borrow still more during the lean years (and at that, lean years of their own making; they are still hiring more staff, issuing more sci-fi regulations, and otherwise discouraging economic activity that might help pay off the Government's debts).

This is not "Keynesian economics;" it is just plain lunacy!

Steven said...

Isn't the amount coming into the treasury monthly many times over the amount required to service the debt?

Several times, at least. So, assuming the 14th Amendment means the debt must be paid on time, there's still no borrowing authority in excess of the debt limit implied, because we don't have to borrow to pay the public debt. All it would mean is that the debt due must be paid out of the available funds first, before any other spending is done.

Further, there's explicit Congressional authority (Section 206 of Public Law 100-119, 1987) to allow the President to defer spending on appropriations in order to cover contingencies. This is in accordance with a precedent-established executive power to do so first invoked by President Thomas Jefferson, and used by what the Congressional Research Services calls "virtually every President".

So, given a perfectly established legal means of meeting debt payments without borrowing (use current income to service the debt, defer spending on appropriations that would require borrowing to meet), how would the Fourteenth Amendment give the President the ability to unilaterally issue debt, exactly?

It wouldn't, of course. Anyone saying that a failure to raise the ceiling would risk default on payments to bondholders are one of 1) misinformed, 2) deliberately lying, or 3) expecting that President Obama would actively choose to default on the debt and destroy America's credit rating even though he has all the tools he needs to unilaterally avoid it.

Incidentally, since President Obama has said a failure to raise the limit would threaten payments to bondholders, that means he is one of 1) misinformed, 2) lying, or 3) announcing an intent to deliberately default on the debt and destroy America's credit rating even though he has all the tools he needs to unilaterally avoid it.

PatCA said...

I say, let Obama borrow more money on his signature alone--providing he is also personally responsible to pay back any deficit. Problem solved!

Jenner said...

The possibility that the 14th Amendment comments on the debt ceiling is so far out there, I can't even form an appropriately logical argument. It is just not there. But attorneys make these kind of arguments all the time and I've found them to be the hardest to argue against.

Paul said...

If there is no limit to debt then why taxes? Why tax anyone? WHY TAX ME?

See if my charge card was unliminted and I didn't have to pay it off, could I just not work and, you know, live?

These idiots are playing with fire and one day the whole house of cards will fall.

Luther said...

The majority of our politicians care about one thing, and one thing only. Themselves. As in whatever allows them to keep their lips firmly plastered to the public teat is all that matters.

It seems to me that this whole conversation, the debt, is just a way to keep politicians elected and lawyers employed. With the MSM sucking hind teat but most elated and willing to do so.

We, as a country, are going to hell, a figurative association by the way. The only open question is the steepness of the slope upon which we descend. I have little hope it is a valley.

Steven said...

By the way, only an utter idiot would buy bonds issued unilaterally by the President without authorization, unless they were offered with junk bond yields. After all, if there is just a 5% chance they'd be ruled invalid because they were issued illegally . . . .

Alex said...

Can anyone explain me the Constitutional status of the public debt?

geokstr said...

Michael K said...
These are all tactical statements to try to gain political advantage. I doubt the Treasury could sell bonds issued without Congress' approval.


Sure they could. They have a reliable buyer in Ben Bernanke.

The unauditable Federal Reserve Bank already own a huge chunk of the debt, far more than the Chinese and Japanese, the next two biggest holders, combined. The last I was able to find by googling is that the Fed owns between 1 and 5 trillion dollars of US Treasuries and that was before the 2 trillion in QE1 and QE2 that they just magically bought with electronic faux money. But my google inquiry into how much in total they hold now had no answers in the first 5 pages of links. (Funny that, in this age of the most transparent regime in the entire history of the frackin' known universe, that this vital information to the present debt crisis should not be readily avialable, non?)

Any time he wants, Ben just tells Timmy that he wants to buy another $X,XXX,XXX,XXX,XXX in Treasuries, wires over that amount in electronic money, and tells him, "Hey, spend it quick, before the suckers, er, I mean, voters, get wise to the con." I mean, do you really think that Ben would run a credit report on the United States before he bought the bonds?

I have an idea - let Obama, in the spirit of grand "compromise" he so fondly speaks of, chip in his umpty-umpteen billions still left in the State Public Employee Union "Stimulus" bill to keep the government afloat for a couple more months while negotiations continue. (Coincidentally, the amount he has left is also difficult to find out.) But I bet he spends it all instead to create a whole bunch of faux temp jobs for "shovel ready" projects in the late spring so it will look like the unemployment rate is spiking downward.

I think the Rs should hold out for a debt increase just big enough to ensure a major food fight over increasing the limit around, oh, say, September of 2012, so Obama will have to defend his maniacal spending increases as part of his campaign, which is, of course, precisely what he is desperate to avoid.

Joanna said...

The Democrats do not see it that way. They have spent every dime they took in, or could borrow, during the fat years and more

Worse -- they don't just spend every dime, they create programs that cost money now and later .

Ponies aren't expensive because they cost a lot. They are expensive because it costs even more to feed them, keep them in a stable, etc. But at least ponies eventually die (unlike govt programs).

Revenant said...

Kennedy, the "libertarian conservative"?

Is Rosen *high*? Kennedy reliably lines up on the "more government power" side of the vote.

Zach said...

I am convinced that some Constitutional scholars consider reading the actual text to be cheating.

Is there honestly a dispute about the law here? All I ever hear are arguments that failing to raise the debt limit would be terrible. I even agree with those arguments. But Congress has the power to make bad laws. The 14th Amendment doesn't say anything about who has the power to take actions preventing default, so I don't see how it applies.

Marshal said...

"And even if the justices did agree to hear it, the conservative justices would be torn between their dislike of Obama and their commitment to expanding executive power at all costs."

OK, Jeff Rosen goes in the "too stupid to read" pile.

It says something about the left that their most fervent devotees believe idiotic statements are required to establish a connection with their target audience.

george said...

I don't think even the liberal justices would go for so dishonest a reading of the Constitution as to allow Obama to issue his own debt.

Even if Obama were to declare himself dictator and issue new debt he might have trouble selling it. People don't like to put their money into things that are obvious frauds. The full faith and credit of the United States government simply would not be in evidence unless and until the Supreme Court rules as Rosen fantasizes.

But there is one thing the left and right agree upon; they want Obama to try this gambit. It would truly throw the last shovel full of dirt on his presidency but all the left can see is an end to their goodies.

The Crack Emcee said...

Ha! Glenn Reynolds says "the Constitution must be interpreted by an elite priesthood that will insure it means whatever the elites want it to mean."

He apparently feels the same way about art, too.

Funny how that works,...we've got rulers, rulers, everywhere.

caseym54 said...

What's Rosen's real job when he isn't writing about the Court? Sports reporter?

From Inwood said...
This comment has been removed by the author.
From Inwood said...

Er, “validity”, that word you keep using; I do not think it means what you think it means.”

As someone pointed out, by parity of illogic, the illogic of a torturous reading of the word “validity”, if Obama vetoed a debt ceiling extension passed by both houses, wouldn’t that also amount to a "questioning of the validity of the debt"?

Conor said...

Steven's comments +1000.

Traditional Guy wants to kick the can down the road for political reasons, which I understand. But, there is nothing sure about the strategy.

The Tea Party understands the problem and wants to address the crisis now instead of later when it is much much worse. Is it ever helpful to ignore major problems with your health, auto, home, addiction (or virtually any situation) because it is unsavory to deal with it today? Isn't this a basic truth of life?

It is not hyperbole to say that the very survival of the Republic hangs in the balance. The wise will prepare.

The end will come swiftly and violently when the 50% of the people who feed off the teat of the federal government find that the teat has run dry.


As for me, I will continue to invest in precious metals, particularly those lead-based, such as 9mm, .45, .223, and 00 buck. These are the currency of the future.

And I will join the mad rush to enter the new independent Republic of Texas before they close the doors to new comers.

GT said...

Rosen has beclowned himself. I would be shocked if any Supreme Court Justice -- or really anyone without an agenda -- would read the plain language of the Amendment in the way Rosen asserts it must be read.

Consider: I don't have the cash flow to pay my credit card bill, or even to make the minimum payment this month. Have I questioned the "validity" of the debt? Of course not! The debt remains valid and must be paid, although Visa may have to file a lawsuit to convert the debt into a judgment that can be used to seize my assets in order to satisfy it.

This 14th Amendment argument is one of those that is so idiotic only an "intellectual" could believe it.

jms said...

Ok, let me offer a different interpretation. If Obama issues debt in excess of the debt ceiling, he will be illegally issuing bonds that are not authorized by law, and the validity of which, under the Constitution, will not be protected by the 14th Amendment.

One could interpret the act of the President issuing illegal, unauthorized bonds as an act of insurrection against the United States. Under this interpretation, the 14th Amendment would forbid the repayment of those bonds.

This decision would be left to the administration and Supreme Court in power when the time came to redeem those bonds.

It seems to me that Obama is really playing with fire. He should quit looking for end-runs around the Constitution and do his job instead.

Job said...

Geokstr,

I hate to inject facts into your marvelous, spittle-flecked harangue but here are 3:

1) The Fed is legally prohibited from buying securites directly from Treasury. That is, the Fed can't do much to help if Congress doesn't raise the debt limit.

2) The Fed's bond holdings are about $2.6 trillion, of which about $1.6 trillion are Treasuries and $1 trillion are MBS and GSE debt.

See the following page: http://www.newyorkfed.org/markets/soma/sysopen_accholdings.html

3) The Fed has been regularly audited since its inception. There are 2 recent demands for new types of "audits."

i) Ron Paul wants an "audit" of monetary policy. This means that Congress gets an official forum to regularly criticize monetary policy. (I am sure that political pressure will improve policy, don't you agree?)

ii) Some people want an "audit" to publicly reveal specific financial institutions to whom the Fed lent money. Fair enough, but if this information is revealed too soon, it will lead to a run on those institutions, which will go bankrupt and cost the taxpayer plenty. Thus, the Fed's lender-of-last-resort function would be compromised.

Bobby Caygeon said...

Can you imagine the yield needed by investors to purchase Obama "word" secured debt?

Strelnikov said...

Default Now. Theme song:
Blondie - "Die Young, Stay Pretty".

Lance said...

There are three distinct strains of legal conservatives on the Court: the tea party conservative, Clarence Thomas, the libertarian conservative, Anthony Kennedy, and the pro-executive power conservatives, John Roberts, Samuel Alito, and Antonin Scalia.

Kennedy a libertarian?! Ginsberg is more libertarian than he is.

Fen said...

The older I get, the more idiotic Jeffrey Rosen becomes.

Lance said...

@Alex
Can anyone explain me the Constitutional status of the public debt?

Article I section 8 says (in part)...

"The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; ... To borrow money on the credit of the United States..."

sorepaw said...
This comment has been removed by the author.
amr said...

Trying to use the 14th Amendment, fully knowing its intent, just might be the straw that broke the camel's back just as the taking of property ignited Shay's Rebellion and doomed the Articles of Confederation. This wouldn't doom our Constitution, just this administration.

amr said...

Trying to use the 14th Amendment, fully knowing its intent, just might be the straw that broke the camels back just as the taking of property ignited Shay's Rebellion and doomed the Articles of Confederation. This wouldn't doom our Constitution, just this administration.

amr said...

Trying to use the 14th Amendment, fully knowing its intent, just might be the straw that broke the camels back just as the taking of property ignited Shay's Rebellion and doomed the Articles of Confederation. This wouldn't doom our Constitution, just this administration.

wagnert in atlanta said...

"The validity of the public debt of the United States, authorized by law, ... shall not be questioned."

I am not a lawyer, but my interpretation of this clause is that Moody's and Standard & Poor better not downgrade US bonds, or they will have big trouble behind. Savvy?