By Mike Dorf
My latest Verdict column explores how our system of separation of powers created the opening for the Tea Party faction of the Republican Party to exercise a kind of minority rule. The basic story line is this: The Constitution was designed to work without political parties. When political parties arose, they crashed our system for electing Presidents. The 12th Amendment more or less fixed that problem but we have never had a real fix for Congress--where parties interact with separation of powers to create either too few checks and balances (during periods of unified government) or too many (during periods of divided government). I credit a paper by Daryl Levinson and Rick Pildes for the latter half of that observation.
I said all I want to say about separation of powers and parties in the Verdict column. Here I want to explore another aspect of the current crisis--one that arises out of a question that a number of people have posed for me both in comments on the blog and in other venues. In response to the Buchanan/Dorf trilemma argument, the following question has been raised: Are all of the President's options really unconstitutional, in light of the fact that he could avoid a trilemma simply by agreeing to whatever conditions the Republicans in the House demand as a condition for raising the debt ceiling? Or put somewhat more charitably, doesn't the President have a duty to negotiate in good faith in an effort to reach a deal that avoids a trilemma?
In a word, no.
For one thing, the President is not being presented with a bill raising the debt ceiling with strings attached, because such a bill would fail in the Senate. Now it might be said that if the President were to announce that he was willing to accept various conditions on a debt ceiling increase bill, at that point the Senate Democratic leadership would get in line. Maybe, but maybe not. It's also true that if the twenty or so House Republicans who support a clean CR and a clean debt ceiling increase would join a discharge petition, then that would avert the trilemma too. It's hardly clear that the President bears unique responsibility.
Because of the complexity of the underlying politics, in our various papers, Professor Buchanan and I stipulated that in a sense a trilemma always arises as a co-product of Congress and the President's failure to agree to a set of laws that create one. However, in another sense Congress, rather than the President, must be regarded as the proximate cause of a trilemma in circumstances, like those anticipated, in which Congress passes laws that say: (a) Spend $X; (b) Collect $Y in taxes; and (c) Borrow no more than $Z. Having passed laws (a), (b) and (c), where X>Y+Z, Congress obligates itself to pass a "clean" bill raising the debt limit from Z to X-Y. If it fails to do so, or if it agrees to raise the debt limit to X-Y only on various conditions that the President finds unacceptable, then Congress, rather than the President bears responsibility for the trilemma. Conversely, if Congress passed a clean bill raising the debt ceiling to X-Y but the President vetoed it because it did not contain some additional measure he wanted, then the President would be the proximate cause of the crisis. Even then, our analysis still would apply to the situation in which he would then find himself, but the constraints of politics would be quite different and I might even be prepared to say that he had exercised his veto power in an irresponsible manner. However, that is not the situation we now confront.
The core problem with the argument that the President must pursue negotiations with Republicans because doing so would not be unconstitutional is that this argument has no logical stopping point. Suppose that instead of demanding a one-year delay of the Affordable Care Act, or dollar-for-dollar reductions in spending for increases in the debt ceiling, or whatever face-saving goody the Republicans demand tomorrow, the Republicans were demanding that President Obama change his life insurance policy so that John Beohner becomes the beneficiary. Obama could do so without violating the Constitution, of course. Does he therefore have a duty to do so in order to avoid creating a trilemma? If so, why don't the Republicans have a duty to include in any debt ceiling increase whatever crazy conditions that a President might insist on as the price of his signature?