Thursday, February 28, 2013

Bad Laws and Good Political Timing

-- Posted by Neil H. Buchanan

In my new Verdict column today, I discuss whether President Obama is really required to carry out the spending cuts under the so-called sequester.  Given my early advocacy of the argument that the President would not be required to cut spending if the debt ceiling were to become binding, I have been asked whether there is a legal or constitutional work-around that could allow the President to refuse to enact the sequester cuts.  Given that both sides originally agreed to the sequester mechanism in the stated belief that such cuts would be a terrible idea -- so terrible that no one would ever allow them to become reality -- it is at least imaginable that there could be a way for the President to call them off.  Is there?

The short answer is, of course, no.  The key difference between the debt ceiling and the sequester cuts could not be more fundamental.  The debt ceiling is a statute that is not problematic on its own terms, but in conjunction with the taxing and spending laws, it can leave the President with no constitutional options.  That is the core of the Buchanan/Dorf trilemma analysis, about which we have been writing for what now seems like forever.  The President is, we argue, constitutionally prevented from cutting spending below the levels that Congress has ordered.  In a constitutional duel, spending laws win over the debt ceiling (and the tax laws).

By contrast, the sequester is a law passed by Congress that directly instructs the President to cut spending.  There is no apparent conflict with other laws -- even though the spending cuts clearly conflict with good sense and human decency.  So, one way to describe this is simply to say that Congress has fully exercised its constitutional powers to do something stupid and cruel.

Not content to leave it at that, I added to my column an additional angle that derives from the analysis in our new article, which will be published in a few days by Columbia Law Review Sidebar.  [Update: The article has been published.  It is now available here.]  There, we described what remains of the "nondelegation doctrine," which many scholars believe has been completely neutered.  In fact, we point out that the Supreme Court has left intact a minimum requirement that Congress must meet, when delegating gap-filling responsibilities in lawmaking to the Executive: There must be an "intelligible principle" that tells the President how to exercise the discretion that Congress vests in him.

We then argue that this principle is absent in the context of a trilemma (i.e., Congress provides nothing at all to guide the President in allocating spending cuts), which would make spending cuts in that context a violation of the nondelegation doctrine.  That is clearly not our primary argument, but we developed it in response to a claim that the debt ceiling statute somehow amounts to an order that the President cut spending.

I tried gamely, but I just could not find a way to read the relevant sections of the 2011 law that created the sequester as lacking an intelligible principle.  Not only is there a large amount of guidance in terms of how to compute the cuts, but there is also fairly clear language specifying which categories are to be cut, and which are not.  In the end, I concluded that the "intelligible principle" in that act is that Congress ordered the President to be as arbitrary as possible.  "Make cuts widely, heedless of their impact" is not smart policy, but it is certainly clear enough to provide guidance to the President, under the current forgiving standards of the nondelegation doctrine.

It would, of course, be possible to argue that the nondelegation doctrine should not be quite so forgiving.  This might, in fact, be a fine test case that could allow the Supreme Court to limit Congress's ability to punt its lawmaking authority to the executive branch.  That is even a case that the Supreme Court would probably be willing to hear (unlike challenges to the debt ceiling).   This might also be something that conservative constitutional scholars would like, since it would give the Supreme Court the opportunity to pull back on the New Deal-era cases that opened the door to the modern administrative state.

There is, however, no political gain for either side in bringing this case.  Republicans in Congress love being able to force the President to make the tough calls, and then to scream about what he has done.  This, in fact, is the core of their strategy.  The supposedly principled plans that Rep. Paul Ryan wrote, and that the Republicans in the House passed unanimously in 2011 and 2012, are extraordinarily short on the details of what would actually be cut.  (The strategy is simply to say that "total spending will be cut by $X, and economic growth will increase tax revenues by $Y, resulting in deficit reduction of $X plus $Y.")  Similarly, the Republicans have talked about increasing tax revenues by eliminating "loopholes" and "tax expenditures," but they have never identified even one such provision that they would agree to eliminate.  Why take responsibility for the tough choices, when you can try to force the President to take the heat?

For his part, President Obama would have even less reason to push the decision-making responsibility back on Congress.  Given the brick wall of opposition that he faces in the House, Obama's team has made it clear that it will do a great deal of work henceforth through executive orders, exercising the full limit (and arguably beyond) of the powers that Congress has delegated.  He is, therefore, in no mood to push an anti-delegation argument.  (And the President would certainly enforce the sequester cuts while pursuing such a case.  For example, despite some initial confusion, his conclusion that the Defense of Marriage Act is unconstitutional only led him to refuse to defend it in court, not to refuse to enforce that misguided law.)

Finally, consider an additional aspect of the sequester cuts.  I have been highly critical of the White House's political decisions (most recently here).  In some ways, the sequester is a perfect example of this political blundering.  News reports have it that the Administration misread the mood of the Republican Party, thinking that its military hawkishness would supersede its anti-government fervor.  Under this line of thinking, the President agreed to cuts that are painful to liberals, while imposing cuts that Republicans turn out to be perfectly happy to live with.

If the Administration was genuinely surprised by the Republicans' willingness to let the sequester cuts take effect, however, then they have turned out to be very lucky, because the sequester cuts can potentially help the White House politically -- especially because of their timing.  I had originally thought that it was crazy for Obama to agree to push the sequester deadline to March 1, knowing that on March 27, he would have to hammer out another continuing resolution on spending and taxing, to avoid a government shutdown.  When they moved the sequester deadline from January 1, why not move it to coincide with that other deadline, so that all of the budgeting components could be negotiated at the same time?

That, however, might have been the worst possible political strategy for the President.  Consider one of the lessons that people drew from the payroll tax cuts that Obama was able to pass as part of his stimulus package (and that were allowed to expire on January 1 of this year).  The Administration reportedly made a conscious decision to make those tax cuts as invisible as possible, to maximize their macroeconomic impact.  The idea is that sending people tax cut checks will make people feel that they have received a windfall, and possibly to save the money, whereas quietly increasing their take-home pay will make them more likely to spend the money.  Because the whole point of stimulus spending is to stimulate aggregate demand, that was arguably the right strategy.

The problem is that it was a lost political opportunity.  There was no photo-op of people holding up their Obama Stimulus Tax Cut Checks, and thus no one gave the President credit for increasing their take-home pay.  By contrast, what we now see is the purest example possible of "good optics," from the White House's political standpoint.  People are now talking about nothing but the actual consequences of government spending cuts.  They worry about airport security, food safety, military readiness, the release of immigrants from detention, laying off teachers, and a million other things that are important both as broad policy issues and as examples of how much people get from government spending.

This would not have been possible if the sequester cuts had been rolled into the broader spending and taxing negotiations.  Nor, for that matter, would it have been nearly as obvious if the sequester cuts had taken place as originally scheduled on January 1, because everyone's attention was then focused on taxes.  By having the sequester take effect tomorrow, we have been in the midst of some serious consciousness raising.  Congress is desperately trying to call this the "Obama sequester," and for good reason.  People do not like it when the general notion of "cutting spending" becomes real.

As I say, I think the Administration might have blundered its way into all of this.  But it is certainly an example of how important it is to frame a political debate.  The shame of it all, of course, is that real people -- mostly people who are highly vulnerable -- are going to be hurt.  If ever there were the possibility of using a policy setback to change the political debate, however, this is it.

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