-- Posted by Neil H. Buchanan
Two weeks ago, with virtually no fanfare, Congress and the President did exactly what I had expected them to do all along. They set up another trilemma, by passing a spending law that, if faithfully executed by the President in conjunction with the revenue laws, would force the President to borrow in excess of the debt ceiling later this year.
You remember the debt ceiling, right? It is currently on hiatus, as a result of the most recent let's-hold-hands-and-close-our-eyes moment from the Republicans, who decided that it would not be an "increase" in the debt ceiling if they suspended it, and then brought it back into existence at a higher level in May. (At that point, they will refuse to increase it further, so that they can hold the economy hostage again to their demands for even more extreme austerity.) We will get a few extra months of brinksmanship, because of the ever-popular "extraordinary measures" that Treasury has up its sleeve. But by late July or early August of 2013, it will be just like July and early August of 2011 all over again.
When I say that I expected this all along, I am not merely saying that it was unsurprising on March 27 that there was no government shutdown, or other theatrics. After the big political battle over sequestration in late February, there was a sudden, odd moment when everyone decided that they were not going to have another battle over extending the "continuing resolution" that allowed the government to operate (in lieu of an actual, fiscal year-long set of appropriations laws). So, by the time late March came along, it was no surprise that the new continuing resolution sailed through Congress, and that the battle lines were set up for the summer.
In that context, no one could have been surprised. Move the time frame back just a few weeks, however, during the fight over sequestration, and this undramatic outcome would have been utterly shocking. Indeed, when Professor Dorf and I were (in January and February) writing the third in our series of articles for Columbia Law Review about the debt ceiling, we had serious discussions about whether political events might pass us by. How would that have worked? Coming off the craziness of the expiration of the Bush/Obama tax cuts on January 1 (and the Biden/McConnell deal that resolved that particular crisis), there were three deadlines looming: the next debt ceiling drop-dead date, then the sequestration cuts (which had been delayed for two month by Biden/McConnell), and then the continuing resolution.
Even after the debt ceiling was suspended, there was still the possibility that policymakers could look at the new calendar (sequestration on March 1, possible government shutdown on March 28, and possible default late in the summer), and agree to a Big Deal to obviate all of those looming issues in one fell swoop. Content aside (that is, completely independent of whether the resulting fiscal policy would be expansionary or contractionary, progressive or regressive, forward-looking or retro), one could easily imagine a deal that would involve a combination of taxing and spending that would put the debt on some known long-term path, which would allow people to agree to increase the debt ceiling to accommodate that path. The moving parts were all obvious, and there was plenty of good reason not to want to go through the debt ceiling nonsense over and over. Should Professor Dorf and I bother to write something that would only be relevant if Congress failed to take the obviously preferable path of preventing future crises?
It is to laugh! If ever there was a safe bet, it was that there would be another trilemma. The Republicans were clearing salivating over the idea of having another go at it, and the President had already used (squandered?) the only ammunition in his arsenal, when he agreed not to have taxes rise across the board in January. He was thus in no position to insist on a continuing resolution that included a debt ceiling increase (just as he was powerless to stop the sequester-related cuts, which actually did surprise me, for different reasons).
And here we are, with a new trilemma looming, and no indication of how the White House thinks this will play out. The Republicans have been saying for weeks that they have every intention of using the debt ceiling to force Obama to agree to further cuts, with the most shocking recent example of Ohio Senator Rob Portman encouraging his fellow Republicans to use the debt ceiling to extort concessions from Obama. Shocking? Yes, because Portman is a former White House budget director. It is one thing when, say, a shameless ideologue like Rand Paul, or a social conservative like (fill in the blank) who knows nothing about economics or budgeting, says crazy things about using the debt ceiling as a political tool. One would hope for better from Portman, but no. (Maybe if his other son announced that he is a closeted Keynesian economist, Portman would see the light.)
I mention Portman in passing in my new Verdict column, which was published today. The broader point that I make in that column is that the Republicans almost appear to have taken seriously the question about "prioritization" that they have been avoiding throughout these self-inflicted crises. The Buchanan/Dorf view is that the separation of powers is violated -- in the most unconstitutional way -- when the President changes Congress's spending priorities, because setting spending priorities is one of the most (if not the most) fundamental legislative duties.
House Republicans are now planning to pass a bill that would express Congress's priorities -- sort of. In particular, they say that the President would be forced to pay principal and interest, in full and on time, for all holders of U.S. Treasury securities. That, interestingly, appears to be a response to the arguments that have been made about the 14th Amendment, but on the narrowest basis. That is, Republicans might be saying that it would violate the 14th Amendment for the President to fail to pay bondholders, because that is the only thing that would cause people to question the validity of the debt.
That is, as we argued in our first Columbia Law Review article, an incorrect reading of the 14th Amendment, even on narrow terms. Beyond that, however, the problem with this statement of prioritization is what it does not say. That is, there is apparently no plan for Republicans to pass a bill telling the President what to cut from the rest of the budget, which he must fund with the money remaining after paying bondholders. He would thus have fewer targets from which to cut money, and he would still be usurping the quintessential legislative power of rebalancing priorities.
As we pointed out in our third article (which we did, obviously, end up writing), Congress has the power to write laws that would require the President to spend more or less on any particular item, in ways that add up to whatever amounts Congress wishes. Those are called appropriations laws, and Congress just passed its latest set of such laws two weeks ago. If they want to re-prioritize, they can do so. But while partial prioritization might solve the 14th Amendment problem -- and again, I do not think that it does -- it will certainly not prevent the President from having to choose between unilaterally increasing taxes, unilaterally cutting spending, or unilaterally borrowing beyond the statutory limit.
Meet the new trilemma, same as the old trilemma.