Friday, January 04, 2013

Debt Ceiling Redux (And Why Merely Calling an Argument "Unpersuasive" or "Unconvincing" is Not Itself an Argument)

By Mike Dorf

On Monday from 10 - 11 am, I'll be a guest on On Point with Tom Ashbrook, heard on NPR stations around the country. So will Stanford Law Professor (and former federal judge) Michael McConnell. We'll be talking about the debt ceiling (of course).  I'll expound the Buchanan/Dorf view that faced with the trilemma of only unconstitutional options, the President should choose the least unconstitutional option and that means overriding the debt ceiling. It's hard to predict what Professor McConnell's response will be.

Here's what McConnell had to say about a month ago: 
I have never seen a remotely persuasive argument that the president is entitled to borrow money that the Congress hasn't authorized.  [The 14th Amendment] does not authorize the president to do anything.  And it certainly doesn't authorize him to violate the clear constitutional provision that requires congressional authorization for borrowing.
Professor Buchanan explained what's wrong with this statement in a post last month.  Buchanan and I agree with McConnell that Section 4 of the 14th Amendment doesn't authorize the president to do anything.  The problem is that if Congress fails to raise the debt ceiling, then the President will have to violate some "clear constitutional provision" because borrowing, taxing and spending are all powers assigned to Congress.  And as we lay out in detail in our Columbia Law Review Sidebar paper, the power to cut spending is also assigned to Congress.  For the President to cut spending on his own is to assume a line-item-veto power that the Constitution denies him.

Thus, relative to the Buchanan/Dorf view, McConnell's stated position is a non sequitur. McConnell is saying that the President isn't entitled to borrow money that Congress hasn't authorized him to borrow because doing so would be unconstitutional.  But that's no kind of a response to our further argument that whatever the President might do--including doing nothing--would be unconstitutional. And as Professor Buchanan noted last month, McConnell heard the core of our argument over a year ago, so when McConnell says he hasn't "seen a remotely persuasive argument" he presumably means that he finds our argument unpersuasive, not that he is unaware of our argument.  Yet McConnell's own reasoning is completely non-responsive to our view, so I'm at a loss to figure out which parts of our argument he finds unpersuasive.

At least I'll have a chance to try to get to the bottom of the disagreement with McConnell when we're on air. I may simply end up frustrated with University of Chicago Law Professor Eric Posner, who agrees with us that the President should override the debt ceiling but for what he imagines to be quite different reasons.  Writing in Slate, Posner says this:
Two law professors, Neil Buchanan and Michael Dorf, have argued that the president is actually constitutionally required to violate the debt ceiling rather than cut spending. To respect Congress’ will, he should follow its orders to spend rather than follow its orders not to borrow—the idea is that the spending power is somehow constitutionally fundamental to what Congress does, while the borrowing power is not. I say “somehow” because Buchanan and Dorf do not explain convincingly why that would be so.
Apparently, there is something about our argument that leads people to say it's not "persuasive" (McConnell) or not "convincing" (Posner), without feeling any obligation to confront the actual argument or to say why it's unconvincing.

In any event, of course we don't convincingly explain how "the spending power is somehow constitutionally fundamental to what Congress does, while the borrowing power is not," because that's not our contention at all.  Buchanan and I devote a few pages (of our 69-page article) to showing how past practice suggests that Congress in fact has treated the debt ceiling as pro forma relative to the budget, but we also make clear that our argument does not rest on the one or another power being more fundamental in any sense.

Rather, the core of our argument goes like this: A President's multi-faceted decision about which spending programs to cut and by how much, or about what taxes to raise and by how much, would involve a great deal more policy judgment than would a decision to issue the precise amount of new debt needed to cover the gap between revenue in the Treasury and expenditures allocated by Congress.  Therefore, we say, in order for the President to minimize his usurpation of Congress's policy-making authority when anything he does will usurp some Congressional power, the President should override the debt ceiling rather than cut spending or raise taxes.

And lo and behold, after dismissing our argument as unconvincing, Posner then more or less adopts it.  Here's what he says next:
If [the President] cuts spending, then he violates constitutional norms that give Congress the power to determine spending. If he raises revenues by borrowing or trying to tax people, then he violates constitutionals norms that give Congress the power to borrow or tax.
Yes, exactly right. The President faces a trilemma. So Posner finds our argument convincing after all; he just doesn't realize it.

There is a real, if subtle, difference, however.  Buchanan and I think the President is obligated to minimize the constitutional damage he does, even when Congress puts him in an untenable situation.  By contrast, Posner thinks that under such circumstances, the President gets to do whatever he wants. Or, as we characterized this view in our main Columbia Law Review article, if the President has only unconstitutional options, then for the likes of Posner, "all bets are off."

Posner is a self-described follower of Carl Schmitt, believing that law cannot, and generally should not attempt to, constrain executive power. Thus, in his Slate piece, as in his earlier NY Times Op-Ed co-authored with Harvard Law Professor Adrian Vermeule (also the co-author of their book on executive power), Posner says that the better argument for presidential authority to override the debt ceiling is that the President runs the government. And if Congress is so foolish as to give the President contradictory orders, he "should wield the big stick . . . ."  I'm very happy taking the view that law can, and should aim to, constrain executive power, as against Posner's (and Vermeule's) Schmittian President-uber-alles view.

It would be better, I suppose, if our interlocutors would come to grips with what Professor Buchanan and I are actually saying rather than simply pronouncing our arguments unconvincing, but at least they're beginning to notice that we said something.