Tuesday, October 08, 2013

To Say That Eric Posner Has Twisted Himself Into a Logical Pretzel Would Be Unfair to Pretzels

By Mike Dorf

Last Friday I commented on the non-debate between, on the one hand, Professor Buchanan and myself, and, on the other hand, various scholars who take different views of the options that would face the President should Congress fail to raise the debt ceiling.  I took issue in particular with Professors Michael McConnell, Eric Posner and Laurence Tribe, as they were the three other scholars cited in a NY Times article that discussed the Buchanan/Dorf trilemma analysis alongside of other frameworks.  Professor Posner has now replied in a New Republic essay that, as will become evident, is probably better understood as a manifestation of the psychological phenomenon of projection than as legal or political analysis.

Posner levels two misguided criticisms against what he imagines the Buchanan/Dorf approach to be.  First, he ignores the reasons we gave for the conclusion that when a President spends less money than Congress has appropriated, the President acts unconstitutionally.  We argued in our articles, essays and blog posts that such unilateral Presidential spending cuts would be unconstitutional for two reasons: First, as the majority and even the dissenting Justices in Clinton v. New York acknowledged, the President must spend all of the money Congress has authorized him to spend; and second, even if Congress were to authorize the President to cut spending, the non-delegation doctrine would obligate it to provide an "intelligible principle" for him to employ in setting priorities, but here it has supplied no principle whatsoever.  Posner does not mention, much less refute, these arguments.  Instead, he attributes to us the following claim: "Trivially, a violation of a statute by the president is a violation of the Constitution because . . . he may act only with statutory authorization." That is actually true and not trivially so.  When the President fails to execute a law Congress has enacted he violates the Take Care Clause and, when the non-execution involves usurping a power of Congress, the President violates separation of powers.  But even if one thought these were mere "trivial" constitutional violations, Posner's saying so would not undermine our actual argument, which as I have noted, he ignores.

Although Posner's first effort thus fails to join issue with Professor Buchanan and myself, at least he comes close to hitting the target on the straw man he erects.  His second effort fails at even that modest goal, hitting himself instead.

In my post on Friday, I took issue with Posner's pronouncement that it would be easier for the President to persuade the American People that he has a freestanding constitutionally unenumerated emergency power to save the nation in time of crisis than it would be for the President to admit that Congress had placed him in an untenable position in which each of his realistic options would be unconstitutional and that he was therefore acting in such a way as to minimize the constitutional damage.  I explained in Friday's post that I had reason to doubt Posner's expertise at Presidential public relations but that even if he turned out to be right, that would be a second-order consideration.  The main point Professor Buchanan and I have been making is that the President should choose the least unconstitutional option.  I explained that the question of how the President should sell that choice to the American People was not our chief focus.

Posner chose to characterize that point as follows: "In other words, [the President] will lie to the public about his legal reasoning, no doubt only seconds before the truth leaks out to the press. This statement of the argument constitutes its own refutation."

I am tempted to say that maybe that statement of the argument is its own refutation, but that's not my statement of the argument, it's Posner's mischaracterization of the argument.

Tempted, but I won't bother going down that road because just a few paragraphs down Posner reveals himself to be so hopelessly confused that I doubt it's even possible to find a coherent position of his with which to disagree.  He defends his view that the President should invoke his supposed emergency powers using exactly the argument he imagines that I had made, and which he himself declares to be self-refuting.  Really, I'm not glossing here.  I'm simply reporting.  Here's what Posner says:
What exactly [the President] should say is a political, not legal, matter. The declaration could be garlanded with quotations from the founders, or festooned with solemn appeals to the examples of Lincoln and FDR who also acted unilaterally in the face of crisis. The president could invoke his “inherent” executive powers under Article II of the Constitution (which vests the president with mostly undefined “executive” powers); he could even cite the 14th Amendment or offer a strained interpretation of the relevant statutes or don whatever other leaves his lawyers pluck from the potted fig trees kept at the ready in the White House Counsel’s office. But whatever he says, the reality and the implication will be that the law has run out and he is acting in the common good because Congress has plunged the nation into a crisis.
As Posner himself so aptly puts it: "In other words, [the President] will lie to the public about his legal reasoning, no doubt only seconds before the truth leaks out to the press. This statement of the argument constitutes its own refutation."


L.T. said...

MD for the win.

Justin said...


I think you are overstating Posner's objection to your point, which is made in its entirety here:

Statutes often conflict with each other, and the solution is always to adopt the interpretations that do the least violence to the different statutes. The resulting interpretation is the law, and the president acts constitutionally by obeying the law. Thus, he never faces a Sophie’s choice of unconstitutional options. True, the president must exercise considerable discretion under complex conditions to cut spending, but if the proper interpretation of statutes tell him to do so, then he must so act. The president exercises similar kinds of discretion every day, as, for example, when he decides how to allocate limited resources among prosecutions under the hundreds of criminal statutes that Congress has enacted without giving him the funds to enforce all of them.

Ignoring the characterizations and name calling on both sides, Posner's response is simple: He views the appropriations clause as having a necessary limitation that they only apply to the extent there is funding. You disagree, in part relying on the antidelegation claim.

I think if anyone ever had standing to get this to the Supreme Court, neither of your positions are unreasonable. It's also worth noting while Posner believes in a different theoretical approach to the meaning of an appropriations statute, he thinks that theoretical approach is not practically enforceable, and then ends up in almost the exact same place that your analysis does, except using different language.

As to the rest of the post, if you agree with his position, then much of what he says also makes sense. And if you disagree with his position, it doesn't, and everything you say in contrast makes sense. So it would be more helpful to both of you to debate your rather narrow disagreement in the context of where it actually exists.

Michael C. Dorf said...

Yes and no. Precisely because Posner's bottom line--the President should issue bonds--is so similar to ours in this context, I was taken aback when he was so dismissive of our position in the NY Times story and elsewhere. When I called him on that, he doubled down. So I replied.

There are two disagreements. One is about marketing. Posner thinks that the assertion of emergency powers by the President would sell better than the least unconstitutional option. I think he's wrong but as I've been trying to point out, that's at best a minor criticism of the Buchanan/Dorf position.

The second disagreement is more substantive. Posner and Vermeule think that the President has emergency powers that allow the President to do pretty much whatever it takes in an emergency. We think that's a very dangerous view and have said so. I would welcome a substantive disagreement about this point, but whenever Posner says anything about Buchanan/Dorf it's simply to dismiss our position as unrealistic.

Accordingly, I take criticism of me and Posner for both being difficult or childish or whatever as somewhat like criticism of President Obama for being as stubborn as the Republicans. It matters how we got here.

Eric Segall said...

Mike, enjoyed your response to Eric Posner but not sure about this sentence: "When the President fails to execute a law Congress has enacted he violates the Take Care Clause..." Not sure that is right. Certainly President Obama did not have to execute DOMA, and Congress cannot make the President "execute" laws such as closing the PLO mission to the UN (a case I worked on at DOJ). Maybe I am mischaracterizing your argument?

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