-- Posted by Neil H. Buchanan
In the two weeks since the government shutdown ended, the two big political stories have been the technical problems of the new health care website and the revelations that the United States has been spying on its allies. While neither of these stories is news as a matter of kind (new software is always glitchy, and governments have always spied on their enemies and friends alike), their relatively extreme degrees have made them political headaches for the Obama administration.
A meta-narrative is now emerging in Washington that purports to pull those two stories together. In a front-page news analysis article in yesterday's New York Times, political reporter Peter Baker describes a gossip-fed line of thought in which the President is completely disengaged from his own presidency. Even allowing for the fact that no President can really know even a fraction of what his administration is doing in his name, Baker says ominously that, for both of the two issues du jour, Obama's "explanation roughly boils down to this: I didn’t know."
I frankly find this type of political analysis tiresome and meaningless. Lacking any clear thoughts on a substantive matter, even the laziest reporter can always find people in government who will put on the airs of the wizened insider, criticizing the President for doing too much of one thing or another. Or maybe it is too little of all of those things. President Jimmy Carter was famously criticized for being too hands-on, for example.
Baker then goes meta-meta by noting that his story is an old one (even acknowledging the old criticism of Carter), but then goes on to try to breathe life into an old narrative and ask, essentially, whether this time is different. His conclusion: Not really. He ends the story by quoting a former staffer in the Reagan White House, who said that "the typical pattern" for any President's staff "is to try to insulate the president from responsibility for bad news." Apparently, "same as it ever was" counts as front-page news, where the mere accusation of Presidential disengagement is enough to feed the story -- especially because almost nobody will actually open the paper and read to the anticlimactic end.
The better question, I suppose, is whether this (or any) President is actively engaged in decision-making by his Administration. The two current issues at the center of Baker's innuendo-laden story are not about active decision-making, but about awareness of the development of matters that might become political problems. In the title of this blog post, I ask the pointed question of whether the Obama team -- not just the President, but all of his relevant advisers -- has ever really thought carefully about the debt ceiling. The answer to that question is not a matter of "Presidential disengagement," or something like that, but rather the quality and breadth of the analysis that precedes policy decisions by the head of the Executive branch.
In a trivial sense, of course, the answer to the question in today's title has to be "yes." Even putting emphasis on the word "seriously" does not change that trivial certainty, because we can be sure that the Obama people thought long and hard about how to respond to the debt ceiling craziness that the Republicans have perfected over the last 34 months or so. The Obama people must certainly have thought carefully about their stare-down strategy in the February 2013 and October 2013 crises, after having been burned so badly in the Summer 2011 crisis.
Moreover, the White House has twice gone out of its way to rule out strategies that were gaining currency in public discussions. The Press Secretary explicitly ruled out both the 14th Amendment-based argument, as well as (thankfully) the use of platinum coins, either of which might have been used to defuse the Republicans' hostage-taking strategy. As I have pointed out repeatedly, however, the White House never directly ruled out any other argument, relying instead on catch-all rhetorical framing, for example: "There are no magic bullets here."
But the White House has never explained why it rejected the 14th Amendment argument, or the minting of platinum coins, or any of the other arguments that they dismiss as little more than mystical projectiles. What other arguments did they consider? Who considered and rejected those arguments?
Professor Laurence Tribe is known to be the President's trusted former constitutional law professor, and Professor Tribe has been openly disdainful of all arguments about the debt ceiling. He has, for example, dismissed Professor Dorf and me as "otherwise sensible legal scholars" whose argument "abandons the rule of law." As insulting and absurd as those comments are, his views certainly appear to have held sway in the White House.
But Buchanan and Dorf are hardly the only people who have noted the problem of the "trilemma." Professor Dorf coined that word, but the unique contribution of our analysis is about the President's options after he is faced with a trilemma. The nowhere-to-turn problem has been noted more broadly. How, then, has this President concluded that the only -- the ONLY -- thing he can do if faced with a trilemma is to default on the nation's legal obligations?
Do the Obama people think that there really is no trilemma, which is the essence of Tribe's risible claim that the spending laws implicitly include waivers when we hit the debt ceiling? Do they actually think that Tribe's claim can be taken seriously (and even if it can, that it solves the problem)? Or do they disagree with us about how to choose among three bad options?
I am not the only person who wants to know. Citizens for Responsibility and Ethics in Washington (CREW) has filed requests under the Freedom of Information Act for any legal opinions and/or memoranda from Treasury, the Office of Legal Counsel (OLC), and the Department of Justice regarding the debt ceiling.
Unfortunately, the request uses inaccurate phrasing, requesting memos that discuss "the authority of the President to raise the debt ceiling," which is absolutely NOT what the President would do, under our analysis or any other of which I am aware. Our major concern, after all, is the separation of powers, which means that the President would not legislate a new debt ceiling, but rather that he would issue sufficient debt to obey Congress's orders regarding spending, given available tax revenue. That is not "raising the debt ceiling," but simply refusing to enforce it because it is constitutionally deficient.
Even though OLC has announced that it will respond on an expedited schedule, therefore, they could rely on the technicality that the request implicates nothing that the President's advisers have considered, because no one has ever considered having the President unilaterally "raise the debt ceiling." If the Administration does not use that tactic, however, what can they do?
There are no good outcomes here. The White House can claim that they were simply unaware of any arguments other than the two that they explicitly ruled out. (Even then, it would be interesting to see how they ruled out the 14th Amendment argument.) They can claim that they considered and rejected Buchanan-Dorf, but given that there has been no substantive engagement with our argument from any scholars or legal analysts, what would those memos say? It is not as if there is a body of work on which the White House could have drawn. No one has even tried to challenge our criteria for choosing among bad options, nor has even one scholar attempted to say that we have applied our criteria incorrectly to the facts at hand.
The worst possibility, of course, would be that there was no serious engagement even from White House lawyers with the possible arguments that would have supported a Presidential claim that the debt ceiling is unconstitutional and thus a dead letter. I have long suspected that the Obama political team simply said, "We can't sell that story, so let's go with a stare-down and win the politics." The FOIA request, however, puts them in the uncomfortable position of having to put up or shut up. Either they produce memos that will be legally deficient, or they will admit that they never took the legal questions seriously at all. I predict a third option (of a different trilemma): They will say that the memos exist, but that such sensitive analyses (on a topic that might come up again) cannot be released. They really have no other option.