-- Posted by Neil H. Buchanan
Back in February, as Professor Dorf and I were completing our third article about the debt ceiling, we spoke at Columbia Law School about the issues that are at stake in the debt ceiling confrontations. We repeated our argument that the President must, as a constitutional matter, issue sufficient debt to fund the spending that Congress has appropriated (while collecting as much tax revenue as Congress has authorized), even if doing so requires him to issue debt in excess of the statutory ceiling. In short, we summarized our articles, as we had been asked to do.
In a Dorf on Law post written immediately after that trip, I summarized some of the discussions during the Q&A of our main talk. One listener asked about the political risks that the President would face in following our advice, suggesting that (as I summarized the point) "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." Because I had other issues to discuss in that blog post, I then wrote: "Discussion of that question
will have to wait for another day."
That day has come, for two reasons. First, the debt ceiling debate is about to return, in all of its ferociously idiotic glory. Second, there is a surprising connection between this particular debt ceiling argument and the current debate about possible military attacks on Syria.
In our original Columbia Law Review article about the debt ceiling, Professor Dorf and I argued that a President who faces nothing but illegal choices (in particular, one who is in a trilemma) should base his course of action on three considerations. He should make the choice that: (1) usurps the least amount of Congress's power, (2) is most easily reversible by Congress, and (3) does the smallest amount of "sub-Constitutional harm." As Professor Dorf put it during our appearance at Columbia: "Sub-Constitutional harm is what non-lawyers would call 'harm.' " That is, the President must take into account the possibility that preserving the Constitution might come at too high a price, so that he should allow for the extreme possibility of saving the country by violating its charter.
The motivating idea behind the sub-Constitutional harm prong had actually been something quite specific. When we were drafting that article, there was serious talk in the blogosphere regarding what I later dubbed the "Big Coin gambit," wherein the President would issue one or more platinum coins and declare that their face value is as many trillions of dollars as necessary to cover the deficit. There were also several other "Hail Mary" strategies along those lines ("exploding options," selling Alaska back to Russia, and so on).
What gave those extreme options traction was that they were supposedly legal. That is, the possibility of minting a high-denomination coin would seem to make it possible for our cherished trilemma analysis to become irrelevant: The President could obey all three laws -- spending, taxing, debt ceiling -- by using a fourth law to create new money. He could, by this logic, therefore making a fully constitutional choice, not merely the least unconstitutional choice that Professor Dorf and I have argued would be necessary.
Our "minimize sub-Constitutional harm" prong was based on our sense that these "legal" options would be so damaging to the country that it would actually be better for the President to act minimally unconstitutionally than to try one or more of those Hail Marys. As it turned out, of course, those supposed legal work-arounds were not actually legal. (See Professor Dorf's argument here, and my logically independent argument here.) Our larger point, however, was that some legal choices are so damaging that they should be off the table.
I had argued back in August 2011 that the Big Coin gambit had the potential to undermine public confidence in the financial system so profoundly that it could bring down the global economy. Economic destruction is "sub-Constitutional harm," and it seemed to us that it was important to have the President include such considerations in his choices about how to respond to Republican hostage-taking via the debt ceiling.
The question that arose during our talk at Columbia was a classic lawyerly challenge: Where is your limiting principle on what types or degrees of sub-Constitutional harm the President should consider? In the extreme, the questioner argued, the President could make the following argument: "If I were removed from office, that would be not just bad for me, but for the world. Not just because impeachment crises are damaging, but because the world is a better place when I am President." If the President is allowed to minimize sub-Constitutional harm, the argument continued, then basically he can ignore everything else and do what he wants to do, Constitution or no.
There actually is a school of thought that has no problem with the idea that the President can do whatever he sees fit. We are not members of that school. We do concede, of course, that this is another line-drawing problem for which there are no easy answers. Our call to avoid sub-constitutional harm was, in our minds, a call to be mindful of major disasters, but it is obvious that reasonable minds could differ about just how major the disaster should be. ("I will no longer be President, and the world will thus be worse off" is a long way from qualifying for that status.)
Which brings us to Syria. Last week, Professor Dorf wrote an analysis of the legal constraints facing the President, when he considers how to respond to the Assad government's apparent use of chemical weapons against its own people. He showed that the written sources of international law rather clearly make it impossible for the U.S. legally to take military action against Syria without Security Council approval. He then noted, however, that some commentators have been invoking a broad power for the U.S. to act under customary international law, to prevent humanitarian disasters. He argued both that no such customary norm exists in the law, and that those who advocate such action are almost certainly underestimating the potential damage that military action could cause.
The most telling point, however, is that the Obama Administration's argument has essentially been that we have to do something to maintain our credibility. They are, in one sense, arguing about maintaining the country's credibility, but in another sense, they are worried about maintaining the President's credibility. (And some Democrats seem to take that into account, when deciding whether to oppose their party's President on this issue.)
As a practical matter, the Administration has now simply decided to get Congress to vote to allow the U.S. to violate international law. That might be good politics, but it does nothing to solve the legal question. If the mindset really is that "the world is a better place when I am a powerful President," however, then maybe a degraded version of customary international law would really require that the U.S. take military action so that the President's credibility is affirmed.
Obviously, I find that position deeply problematic. But both of these situations -- the debt ceiling standoff, and the Syrian crisis -- do expose the ultimate fallback position upon which presidents and their defenders rely. Because nearly all legal rules need safety valves, there is always a way to degrade the argument to the point where "doing whatever the hell I want" is a covered exception. And might then makes right. It is a troubling mindset, but it is surprising how frequently it all comes down to something so crude.