-- Posted by Neil H. Buchanan
As planned, Professor Dorf and I spoke at two events at Columbia Law School yesterday. The students on the Law Review were wonderful hosts, and the discussions at both events were quite stimulating. Happily, the day was capped off with an agreement that our third scholarly article analyzing the debt ceiling (currently available on SSRN) will be published on Columbia Law Review's Sidebar. With lightning-fast work, the piece will be up on the CLR website late next week. A happy trifecta! [Update: The article is now available here.]
One of the issues that came up during yesterday's discussions was whether Professor Dorf and I are being unrealistic in thinking that the Obama Administration would even consider taking our advice seriously, given the political realities that the President faces. A related question was whether those political risks should themselves be counted among the issues that a President can or should consider, if he wishes to make the "right" constitutional choice. Discussion of that question will have to wait for another day. For now, I want to think about the political risks that attend any path that the President might follow.
As Professor Dorf noted in response to one such question yesterday, this is of course not our comparative advantage. If we were good at political handicapping, we would be in another line of work. Even so, it is possible to engage in at least somewhat informed speculation. We have also, it must be said, repeatedly said that we understand how difficult it would be for the President to follow our advice. It is not that we have been blind to the realities. We have, however, been driven by a combination of two factors: (1) We are admittedly being somewhat idealistic, describing our assessment of the Constitutional issues at play here, on their merits, but (2) We do think that there is at least a plausible way for the President to do what is constitutionally required and survive (or even thrive) politically.
The President and his men are certainly politically savvy. It hardly needs to be said how astonishing it is, even now, to think that a relative political newcomer named Barack Hussein Obama became the first black man nominated for President by a major political party, won convincingly against a war hero with a long record of public service, and then won re-election comfortably in the midst of an extraordinarily weak economy (and in the face of heavily financed, shamelessly dishonest, hatred-driven opposition). That alone makes these guys political phenomena. No one should diminish those accomplishments.
The other side of the coin is that the Administration has consistently fumbled the politics of actual governing. For example, even with plenty of evidence -- and good advice in advance -- that their stimulus plan was too small, they not only insisted on the smaller plan, but they insisted on declaring that their plan was actually big enough to fix the economy. Thomas Edsall had a nice piece on the NYT website a few days ago, pointing out that Obama enthusiastically promoted deficit reduction as the great political issue that he must address -- even before he took office. This was, by any reasonable assessment, an unforced error. (January 2009 was the time when even Republicans were admitting that a President McCain would have enacted stimulus.)
The Obama people were also remarkably passive in response to the emergence of the Tea Party, and especially in the lead-up to the 2010 midterm elections. They also sat on the sidelines as the debate over what became the Affordable Care Act raged, missing opportunity after opportunity to improve the outcome or to bring the circus to a close. Yes, the final result was an achievement, relative to the status quo, but it is difficult to think back on the actual day-to-day of that debate and not remember how AWOL the President and his team were, to the detriment of the final product and the larger political agenda.
And there were, of course, nearly two years of utter obliviousness on the President's part to the intransigence of his opponents. Republicans announced from the very beginning that they were determined to make his Presidency a failure. Even after the mid-terms, however, when Obama completely capitulated on the extension of the Bush tax cuts, he failed to notice that the resurgent Republicans were openly planning to use the debt ceiling as a weapon. The President blithely said at the time that he simply assumed that he and Boehner could sit down and do the right thing, when necessary.
I could say more about the Administration's political missteps (and I have, many times), but even readers who disagree with my assessments of particular decisions, or who believe that I am insufficiently acknowledging the political constraints facing the President, must surely admit that Obama's politically savvy team is much better at winning elections than it is at assessing the political landscape in DC. The bar is now so low that the deal to end the fiscal non-cliff is somehow viewed as a win for Obama, despite his having given significant ground on nearly every issue, and having left himself with virtually no bargaining chips for upcoming confrontations.
Therefore, when I learn that the Obama people have made a decision based on "political realities," I do not automatically assume that they have made the right call.
How does that play out in the debt ceiling debate? Certainly, Obama's hard-line stance on the debt ceiling worked to his advantage in December 2012 and January of this year. He refused to negotiate, and he refused to say what he would do if the other side failed to blink. And they blinked. Their retreat, however, is only momentary, and there is plenty of reason to believe that the Republicans are preparing for Armageddon, when the debt ceiling comes back into effect in May.
When that happens, are Professor Dorf and I crazy to think that the President's best choice is the "least unconstitutional option" -- that is, announcing that he is required to honor Congress's orders about what and how to spend and tax, and that the debt must therefore be increased to allow that to happen? Certainly, I have acknowledged that the President would not want to say, "I am about to do something unconstitutional, but it will be less unconstitutional than what the Republicans want me to do." Even so, he could simply say, again and again, that he is doing what Congress has (most recently) ordered him to do. Obviously, the response will be, "But Congress ordered him not to borrow, either." But all that does is make it clear that Congress has created a trilemma.
Would Republicans impeach the President? I have very little doubt that they would try. No one thinks that he would be convicted, of course, so there are only two relevant questions: (1) Will he be impeached, no matter what he does in a trilemma? and (2) Does it matter if he is impeached?
Apparently, Obama's political team views question (1) as a matter of relative probabilities. If he follows Buchanan/Dorf's advice and issue debt in excess of the debt ceiling, his chances of being impeached are something along the lines of 80-100%, I am told. If, on the other hand, he violates the spending laws and unilaterally defaults on various government obligations, they think his chances of being impeached are significantly lower (maybe well below 50%). Why the lower probability? Because it will supposedly be difficult for Republicans to say with a straight face that they are impeaching him for obeying their order to cut spending. And even if they say it with a straight face, Obama can win the talking wars by saying that his opponents are being inconsistent.
Although I can see the logic of that assessment, I think that it ignores the short attention span of the people (including the supposedly nonpartisan pundits) who participate in these debates. All it will take is some private citizen or corporation to file a lawsuit against the President, complaining that he failed to follow Congress's appropriations laws and thus failed to pay what the government owed the now-aggrieved American, and the discussion will be all about whether the President violated the law. The answer, of course, will be that he did. That this is exactly what the Republicans seem to have been asking him to do in the abstract will be, I think, irrelevant.
At the very least, I think it is difficult not to see this as a closer call than the Administration apparently sees it. They think that they can win by saying, "The President had to violate the spending laws, in order not to violate the taxing and borrowing laws," but that he will lose by saying, "The President had to violate the borrowing law, in order not to violate the taxing and spending laws." One must believe that people will accept an excuse in one context, but not the other. I simply see no reason to believe that "explaining is winning" in either instance.
Finally, notice that the President's purported calculations here are incomplete. By eschewing the Buchanan/Dorf approach, and reducing the risk of impeachment right now, he
merely puts off the next constitutional showdown for a year, or a few
months, or maybe (if some Republican strategists get their way) a few
weeks. Even if he wins his first game of Russian roulette, therefore, he will have to pull the trigger again, soon. By contrast, the constitutional crisis that he might create by following our preferred course is a true, once-and-for-all showdown. If he wins, then we know the debt ceiling is dead. If he loses, he still wins, because he will never be convicted by the Senate.
Again, I could easily be wrong in my assessments of the political stakes. Maybe the odds of impeachment are significantly higher if the highly risk-averse President takes our advice. (It is interesting, however, to reflect on how a 46-year-old Black freshman Senator who has the nerve to run for President suddenly became the height of caution when in office.) If so, then the second question above comes to the fore: Does it matter? Even if the House votes to impeach (and again, let's be honest and admit that they're itching to do so, for any reason imaginable), what are the consequences for the President?
He goes down in history as an impeached President. At this point, however, it is difficult not to view that as either a non-issue or even a badge of honor. Radicalized Republican House majorities will have impeached two right-center Democratic Presidents in a row, the first for a sexual dalliance and the second after the House set an impeachment trap. There comes a point when impeachment loses its sting. Clinton's impeachment left him politically stronger, not weaker.
There is even some talk about "brinksmanship fatigue," regarding the endless series of fiscal confrontations that we have seen over the last few years. How much more fatigue will we see, if Republicans put all their political chips on an impeachment?
I am glad that I am an academic, and thus that I do not have to make these exquisitely difficult choices. Even so, if the Obama people's position is, "We'll follow the less constitutionally defensible course, because we think the politics work better for us," then that is hardly an indictment of our analysis.