-- Posted by Neil H. Buchanan
We know that many Republicans have been aching to impeach Obama ever since he took office. We also know that, had the law remained as it was prior to yesterday, no matter what Obama would have done -- cut spending, raise taxes, or issue debt in excess of the statutory ceiling -- would have been arguably a violation of his oath of office, because he would have failed to faithfully execute at least one duly-enacted law.
According to reported hearsay, President Obama would have invoked the 14th Amendment argument if he had not figured out a way to capitulate to the Republicans on the debt limit (or if the Republicans had refused to accept even near-total victory). Among others, Republican Congresswoman and GOP Presidential candidate Michelle Bachmann would have gone ballistic. According to CNN: "Bachmann said President Obama would be a 'dictator' if he raised the debt ceiling by executive order, using the 14th amendment of the U.S. Constitution as justification." Obama's invocation of the 14th Amendment would surely have become the pretext for the long-awaited impeachment.
In that regard, I understand (as I have said all along) why the President was so hesitant to invoke any argument that seemed to arrogate unique unilateral powers to the Presidency. It would have been a political crisis, without doubt. Even though the courts probably would have stayed out of the mess, the House would surely have passed articles of impeachment within days. And even though Bill Clinton not only won his impeachment trial, but came out of it much more popular than ever before (because of the public's sense that he was the victim of a partisan witch hunt), Clinton never had to run for office again. Moreover, with 20 of the 35 Senate seats up for election in 2012 currently held by Democrats, and with many Senate Democrats notably wobbly about debt/deficit issues in the first place, there is no guarantee that Obama could have counted on winning at trial.
Again, I get it. Obama is an anti-risk-taker, and this was a situation with nothing but huge risks. Even Bachmann's statement about the 14th Amendment made it clear that Obama would have been impeached had he chosen not to invoke the 14th Amendment: "It's Congress that does the spending. The president is prohibited to do that. If he had the power to do that he would effectively be a dictator ... There would be no reason for Congress to even come to Washington, D.C. He would be making the spending decisions … Clearly that's unconstitutional."
Indeed. And it is impossible to imagine that she would have had anything different to say about any attempt to raise revenue. Given that Bachmann and others also announced that they would simply refuse to raise the debt ceiling under any circumstances, they would have gladly given Obama no way to avoid the crisis, then impeached him no matter what he did. And given that the Washington media is obsessively committed to the "two sides to every story" model of journalism, this would somehow have been offered as proof that both parties are incapable of dealing with each other fairly.
Which brings me to reverse psychology. Suppose that President Obama had played the role of Brer Rabbit in the old folktale about the briar patch. Knowing that he wanted an increase in the debt ceiling, he could have announced this past November (when rumors started circulating about a Tea Party-led debt limit revolt) that he had no intention to ask for an increase in the debt limit, and he planned to start cutting various spending programs when the money ran out in August. He could have emphasized, moreover, that his top priority would be to make foreign lenders -- especially the Chinese government -- whole, even if that meant stiffing Americans with legitimate legal claims.
Oh, the howls we would have heard! Bachmann would not even have had to change her announcement: "It's Congress that does the spending. The president is prohibited to do that ... He would be making the spending decisions … Clearly that's unconstitutional." Talk of impeachment would have followed. While the Republicans might generally like to go along with something that would prevent the debt from rising, they have shown again and again that they hate Obama above all. They insisted on a debt commission, until Obama endorsed it. They loved health care mandates, until Obama endorsed them. And on and on.
I am not saying that I, or anyone I know, thought of this strategy in advance. We all worry, moreover, that the Obama administration seems to lack even the most straightforward strategy, much less one based on bluffs and deception. Still, it is difficult to see how Obama could have lost (or certainly how the outcome could have been any worse) if he had insisted all along that he wanted to exercise discretion in cutting spending programs in the absence of an increase in the debt limit.
Consider another interesting twist in this alternative history: Suppose that the House had responded by immediately passing a bill to eliminate the debt limit entirely. Suppose that Obama either convinced the Democrats in the Senate not to go along (because he wanted to extract concessions from the Republicans before agreeing to eliminate the debt limit statute), or that the Senate passed the bill, but Obama vetoed it. He would then, acting fully within his constitutional powers, have guaranteed that only the set of three unconstitutional usurpations of Congress's powers were available to him on August 2.
If there was no veto override, and if negotiations had then broken down before August 2, would Obama have then been guilty of high crimes and misdemeanors for failing to uphold the law, even though it was impossible to uphold all of the then-existing laws? In other words, does it become more impeachable if a President refuses to eliminate the legal whipsaw that Obama faced? Do his reasons for refusing to do so matter: vetoing an increase in the debt limit simply because he wants to exercise unilateral spending powers, versus doing so because Congress has failed to offer concessions (more stimulus spending, for example) that the President believes is essential to bring the economy back to life?
The short answer to those questions, of course, is that everything would be sorted out in a Senate trial. Although Arlen Specter is no longer there to invoke "the Scottish common law," we can be sure that an impeachment trial would have been driven by anything but a sober consideration of these issues under the United States Constitution.
No matter how much I hate the deal that Obama ultimately struck, I am relieved as an academic to be able to return to a world of hypotheticals and legal musings. It is necessary to enjoy it now, moreover, because we are only about a year away from seeing this all play out again. Senator McConnell has happily announced: "Whoever the new president is, is probably going to be asking us to raise the debt ceiling again. Then we will go through the process again." Oh, goody!