-- Posted by Neil H. Buchanan
The budget talks have, ever since the day after the election, mostly been focused on the automatic tax increases and spending cuts that are set to take effect on January 1, 2013. Political buzz this week, however, has taken another unfortunate detour, returning to Republicans' longstanding threat to use the debt ceiling to extract concessions from President Obama and the Democrats. My Verdict column today discusses both issues at some length. The central point of my column is that Republicans should be careful
what they wish for, which I will explain further momentarily. Here, I will extend a bit on my analysis in that column, and offer a few further observations.
Republicans think that they can put Obama in the position where he simply has no choice but to cut spending, if the Republicans hold the line and refuse to increase the debt ceiling early next year. Because the current partial-year budget (which is not a complete fiscal year budget, due to the intransigence that has become the new normal for Republicans) runs through March 27, and the debt ceiling (after Treasury's short-term accounting maneuvers are exhausted) will be reached sometime in February, the Republicans want to put Obama in the position of having to cut spending to stay under the ceiling.
Actually, however, the Republicans plan to do more than that. They apparently want to extend the budget (pretty much as is), but nevertheless still refuse to increase the debt ceiling, thinking that this will then require Obama to agree to supersede the budget for one more to their liking. This will supposedly be a better negotiating position than their current uncomfortable stance of threatening tax hikes on everyone in order to guarantee no increases in the top two tax brackets in the country.
The Democrats would be crazy to agree to avoid the (non-)cliff without getting an agreement to eliminate (or at least neutralize) the debt ceiling. They can certainly frame the negotiation such that Republicans are still correctly seen as refusing to allow the country to move forward unless the rich get their tax cuts. Even so, let us imagine that -- consistent with their history (and DNA), but contrary to recent indications -- the Democrats fold, allowing Republicans to negate the January 1 consequences while setting up a battle over the debt ceiling. What happens then?
Today's lead editorial in The New York Times endorses "the 14th Amendment option," calling upon President Obama to announce that the debt ceiling is unconstitutional. This would certainly take away the Republicans' negotiating power. In our recently published article in Columbia Law Review, Professor Dorf and I endorsed that position. I certainly hope that the President will decide to negate the debt ceiling.
The 14th Amendment was the original focus of last year's discussion about the debt ceiling. As that summer's debate played out, however, a separate argument emerged, on which Professor Dorf bestowed the memorable and accurate label "the trilemma." The basic idea is simple (which does not mean that it was simply obvious before the debate began): a combination of spending, taxing, and debt ceiling laws can be mutually inconsistent, in a way that makes it impossible for the President to faithfully perform his duty to execute all duly-enacted laws.
Once put in that position, the President would have to choose which law (or which combination of laws) to violate. At that point, he would be subject to impeachment proceedings, under the theory that he had violated his oath of office, failing to faithfully enforce the laws of the United States. The President would have become a dictator, a tyrant, a lawless rogue who must be brought to heel. Of course, he also had no choice, but that would not stop the Republicans from filing articles of impeachment.
The latter part of my Verdict column explains a point that I have made in various forms before (and which Professor Dorf and I explored at academic length in our Columbia article), which is that the choice to ignore the debt ceiling would be an act of supreme modesty on the part of the President, given the extreme circumstances under which he would be acting. It would, after all, be completely plausible for the President to argue that Congress had given him no choice but to ignore the entire set of taxing and spending laws, requiring him to take emergency action and rewrite all such laws to keep the debt under the ceiling.
Even if the President were to limit himself to cutting spending, which is what the Republicans seem to think they want, he could still invoke the notion of "tax expenditures" as a reason to open up the tax code to enact spending cuts. All of the Republicans' claims that you can raise money from "closing loopholes" would count as spending cuts, and the President could claim merely to be doing what Republicans have required him to do.
In the column, I describe two particularly snarky (but plausible) ideas, under which the President could enact pure spending cuts in a way that was facially neutral but that would actually harm Republicans more than Democrats. There are many other ways to use the inherent discretion that the President would possess under the hypothetical emergency powers, all of which would be equally distasteful to Republicans. The Republicans have, after all, been frantic about the so-called sequestration cuts that they put in place for January 1, because half of those cuts would fall on the military budget. Given that the trillions of dollars in spending cuts to which Obama already agreed last summer were on domestic spending, he could reasonably say that a "balanced overall approach" requires larger military cuts now.
The Republicans continue to think that they will "win" if Obama honors the debt ceiling, but Obama should be able to make it clear that they have much to lose. Indeed, it should be possible to get them to decide that they cannot repeal the debt ceiling fast enough.
Ultimately, this is why I have come to believe that the trilemma argument is stronger than the 14th Amendment argument. Even though I argued in a Dorf on Law post earlier this year that moving to the trilemma might undermine the power of the 14th Amendment argument, I now suspect that the 14th Amendment arguments sounds like too much of a "technicality."
The trilemma framing, by contrast, allows people to see what is really at stake -- and it does so in a way that makes it clear why repeal of the debt ceiling should be a bipartisan affair. No one who believes in a limited executive should want to give any President the power that the Republicans are trying to give Barack Obama next year.