-- Posted by Neil H. Buchanan
The debt ceiling is keeping us busy, here at Dorf on Law. Later today, both Professor Dorf and I will be speaking at Columbia Law School, at the invitation of the Law Review editors who worked on our two articles in 2012.
Over the weekend, we also finalized a new article, which Professor Dorf briefly described here yesterday. In it, we extend our ongoing analysis of the constitutional issues surrounding the debt ceiling. The short-hand versions of the two main sections of the article are: (1) Yes, there really is a trilemma, and (2) No, the debt ceiling is still not binding, even if everyone knows that they are creating a trilemma when they pass the spending and taxing laws.
The latter point is important because already-existing trilemmas (such as the one that Congress and the President faced last month, before the Republicans capitulated by passing their "Debt Ceiling Amnesia Act") do not exist when there are no appropriated funds for the President to spend. (Strictly speaking, there would be a trilemma if even the minimal level of emergency spending required by law during a government shutdown could only be financed by borrowing in excess of the debt ceiling. But given that most of the tax code is enacted on a continuing basis -- that is, unlike spending, tax provisions generally do not expire on a particular date -- there will generally be enough money coming in to finance emergency operations without having to borrow.)
Every spending/taxing agreement, therefore, potentially necessitates issuing enough net new debt to require an increase in the debt ceiling. When that happens, one could invoke something like the "last in time" rule, but we conclude that the problem should not be resolved by relying upon a legal canon that is generally used for rationalizing inconsistent laws. Rather, the more fundamental question is how to preserve the separation of powers. As we point out, Congress might actually want to give away its legislative powers, thus putting the political blame on the President for unpopular cuts (a point that Professor Scott Bauries at the University of Kentucky College of Law calls "learned legislative helplessness") -- but their desire to pass the buck is actually all the more reason not to let them do so. With great power comes great responsibility.
When I went to law school (relatively late in life), I found myself quite surprised by how much I cared about procedure. Even though I am absolutely a form-over-substance guy (see recent examples here and here), I have a deep respect for how adherence to procedures can preserve important substantive goals. Even before going to law school, I had never had a problem with the exclusionary rule, by which "the guilty go free" (as its opponents describe it), because I understood that the integrity of the criminal justice system -- and even some core notions of what it means to live in a free society -- requires that even "the good guys" follow the rules when chasing criminals. There are innumerable nuances, of course, but I was never one to take an ends-over-means approach in such things.
In law school, I found myself similarly taken by the elegance of our system of civil procedure. The various stages of the process -- pleadings, 12(b)(6) motions, discovery, summary judgment -- that precede trial are a truly brilliant approach to dispensing justice. At one point during my judicial clerkship, I found myself arguing aggressively to reverse a summary judgment, because the trial judge had not viewed the evidence "in the light most favorable to the non-moving party." I was quite convinced that the non-moving party would ultimately lose at trial (and he did), but that did not matter. If he was going to lose, it should be because a jury did not believe the evidence, not because a judge predicted that a jury would not believe the evidence.
I have been thinking about this broader respect for procedural matters quite a bit lately, because I have been rather surprised to find myself as gung ho about the separation of powers as I have turned out to be. One of my touchstones has been that we should resolve questions about the debt ceiling by asking how we would feel if we did not know the substantive views of the President and Congress. For example, I have argued in various ways (most pointedly here) that the Republicans should not want their political nemesis -- the Kenyan-socialist-muslim-communist-Nazi-redistributionist Barack Obama -- to have the extraordinary power to cut spending on his own authority that everyone seems to think he would have, should the debt ceiling become binding.
The flip side of that point is that, under the current political configuration, I am arguing against my broader political commitments. If it should scare the bejeezus out of Republicans for the President to have the power to cut spending unilaterally, it should make me happy to give him that power. (It goes without saying that it scares the bejeezus out of me every day to think that House Republicans can block needed increases in spending -- or that they have any power at all.)
The looming "sequester" illustrates the point. Under the sequester, spending will be cut across the board in amounts totaling $1.2 trillion over ten years, with $85 billion in cuts this year. The Congressional Budget Office has estimated that this year's cuts will further slow growth in GDP (threatening a return to a double-dip recession), and will put something like 750,000 more people out of work. The question here, however, is not about voiding the sequester, but about what the sequester says about Congress's implicit priorities.
The editorial board of The New York Times wrote a very good lead editorial last week, in which they laid out a small number of the more egregious cuts that will be part of the sequester: 2100 fewer food safety inspections, loss of nutritional assistance to 600,000 women and children, and 125,000 families potentially becoming homeless due to cutoffs in rental assistance. And that is only the beginning, with years of cuts to a broad number of programs that provide essential services to people in serious need.
Those indiscriminate cuts represent Congress's priorities, however, because Congress passed a law that did not differentiate between the different types of spending that will be subject to the cuts. Even though I have been critical of the idea that the President can simply respond to a trilemma by making across-the-board cuts, my point is not that such cuts are literally impossible. I have simply argued that no President would ever enact cuts in equal proportions, because he would inevitably feel that some priorities are more important than others.
Right now, given that my first-best choice (increasing government spending in a way that supports both short-term and long-term economic growth) is clearly off the table, my second-best choice would be for President Obama to make the decisions about how to come up with a total of $85 billion in cuts to the federal budget. I have been highly critical of the President, but I have no doubt that he would make a series of decisions that I would like a lot more than I like the mess that Congress actually enacted. (The Republicans, of course, are referring to this as "the Obama sequester," trying to pin the blame on Obama by arguing that some of Obama's aides suggested including the sequester in the 2011 debt ceiling surrender bill. That is pure political posturing. Congress passed the law. This finger-pointing lends further support to the idea that Congress really wants someone else to do the dirty work.)
Even though the sequester is a mess, it is Congress's mess. Imagining a President Bachmann or Ryan with the power to declare a Democratic-led Congress's laws a mess scares me a lot more than anything that might happen in the sequester. As obvious as it might sound (especially to the readership of this blog, which includes quite a few people with law degrees) to say that we respect the separation of powers, I am expressing surprise at just how much I respect that constitutional principle, especially in this situation. After all, it is simply unimaginable that we will ever have a Congress run by liberal Democrats facing off with a Republican/Tea Party President. And even if it did happen, that Congress could simply choose never to put the President into a trilemma.
So why am I so intent on preventing the President from exercising his considered judgment by cutting spending, if we ever reach a trilemma? As I have argued, doing so might allow the President to score serious political points, by targeting spending cuts in ways that would make Republicans squirm. He might even be able to get people to stop using the debt ceiling once and for all, by wielding spending cuts strategically.
The politics, therefore, actually suggest that the better outcome for liberals like me of a debt ceiling standoff would be for the President to take power away from House Republicans, and make them pay a political price to boot. Yet I cannot get away from the idea that the separation of powers is more important than all of that. I knew that I respected process, but this is the most severe test yet of my commitment to deep principles over favored outcomes. So far, so good.