By Mike Dorf
I began work on my latest Verdict column on Friday, when a deal to raise the debt ceiling looked like a 50-50 proposition. It now looks much more likely, so I've retooled the column as something of an evergreen addressing the following question: What should the President do when faced with only unconstitutional options? It's a bit of a follow-up to, and expansion of, my earlier blog post on the topic. I explain how our constitutional law stubbornly refuses to acknowledge a substantial role for balancing, which is how the issue would be addressed in most other constitutional democracies.
Developing criteria for deciding among unconstitutional options presents one interesting possibility that should pretty clearly be rejected: Namely, doing whatever the heck you want. Let me explain.
In the example I discuss in the column, I assume that the President has three unconstitutional options: 1) Ignore the debt ceiling and borrow in violation of separation of powers; 2) Tax without congressional authorization and violate separation of powers; or 3) Fail to meet some obligations in violation of Section 4 of the Fourteenth Amendment. I don't say that all three are unconstitutional, just that we get an interesting problem if we assume that they are.
Now, suppose you are the President and you are presented with the above menu of options. Why not think outside the box? Here's another possibility: Order the army to force Congress to raise the debt ceiling without conditions. An abuse of your authority as President? Of course. Unconstitutional? Sure. But, you might think, as long as I've got to do something unconstitutional, I may as well do something that is really effective.
That's a pretty unrealistic example because it wouldn't be effective. The army might well refuse to carry out the order. And the markets would likely react very unfavorably to the new debt issued after the President's coup. But suppose that weren't true. Or suppose that the President did something else that might be more effective. He could, for example, order the printing of more money in violation of the statutory cap on greenbacks in circulation. That might not even be unconstitutional, just illegal. Of course, any time the President willfully violates a federal statute that is itself valid, he could be said to be acting unconstitutional in that he violates his duty to take care that the laws be faithfully executed. But is this more unconstitutional than any of the other options?
Some of what the foregoing shows is how difficult it may be to say for certain in any given case that all of the options are unconstitutional. There will often be some constitutional options that are either off the table for political reasons or too awful to be considered on policy grounds.
That last point suggests to me that whatever the right test is for deciding among unconstitutional options, it probably should include a substantial consideration of consequences. In sufficiently extreme cases, bad consequences could be enough to rule out a constitutional option in favor of an unconstitutional one.
I suspect that beat cops make this sort of calculation all the time in weighing the costs and benefits of complying with the Fourth Amendment. Suppose that a law enforcement official has probable cause to believe that a major dealer in illegal arms has a large stash of weapons in his secret lair. The officer could wait to get a warrant but the lair is far from a court house and there is very poor cell phone reception outside the lair. (Wouldn't you choose such a spot for a secret lair?) However, the officer cannot really be sure that there is an exigency justifying a search without a warrant. Still, he might risk undertaking the search anyway, because even if the search violates the Fourth Amendment--and thus the fruits of the search would not be available in the prosecution's case in chief in a subsequent criminal prosecution of the arms dealer--the contraband will be confiscated. Here, the officer could make a judgment that the potentially unconstitutional action is better than the constitutional one.
In a sense, all I'm saying here is that we shouldn't fetishize the Constitution in the same way that we shouldn't fetishize the law. Legal philosophers debate whether there is a prima facie moral duty to obey the law, but almost no one takes the position that there is an absolute duty to obey the law. Ditto for the Constitution.
That will do it for me for this week. I'm speaking at the annual Practicing Law Institute Supreme Court Review session tomorrow and then on vacation for a few days. Neil Buchanan will post for the remaining days this week. I think he'll find a few economic-policy-related news items to address.