Friday, October 04, 2013

Trilemma Watch Continued: Still No Real Substantive Engagement With Our Argument

By Mike Dorf

The good news from Washington in the last few hours is that the less hardline Republicans appear to be looking for a way out of the government shutdown and probably will not, if push comes to shove, refuse to raise the debt ceiling. But one can never be sure that sanity will prevail and thus, once again, the press has been focusing on what might happen if the debt ceiling is not raised before the government's borrowing authority runs out in two weeks.

The latest story along these lines, by Adam Liptak in the NY Times, lists the Buchanan/Dorf trilemma analysis as the third of three ways by which the President could borrow in violation of the debt ceiling.  The other two are: (1) the notion, most closely associated with Eric Posner and Adrian Vermeule, that the President has emergency powers that he could invoke to avert a financial disaster; and (2) the notion that Section 4 of the Fourteenth Amendment renders the debt ceiling unconstitutional.  The article quotes Posner in support of option (1), while quoting Professor Buchanan and me in support of option (3).  No contemporary source is quoted in support of option (2), although the article does cite the 1935 Supreme Court decision in Perry v. United States to show that Section 4's broad language is not limited to the historical context of its post-Civil War enactment.

Regular readers of this blog probably do not need to be reminded that Professor Buchanan and I have been somewhat frustrated by the shallowness with which legal scholars who disagree with us have engaged with--or rather, failed to engage with--our argument.  We have written three law review articles (available here, here and here) as well as numerous blog posts and columns explaining our position. Yet despite the fact that our argument has received quite a bit of publicity in the press (e.g., just in the last week in the Washington Post, The Atlantic, the L.A. Times and twice in The NY Times) the closest thing we have seen to a sustained critique of our position has come from thoughtful questions posed by commenters on this blog.  The law professors who are weighing in on these questions appear not to have read our actual analysis or to have badly misunderstood it.  Here I'll respond to three prominent critics with whom we have tried, thus far without success, to engage in a serious argument: Michael McConnell; Eric Posner; and Larry Tribe.

McConnell's arguments are the shallowest.  When I was on an NPR show with him earlier in the year, he actually said that he thought that for the President to borrow beyond the debt ceiling would not be, as Professor Buchanan and I have argued, the "least unconstitutional option," but "the most unconstitutional option."  Really?  More unconstitutional than the President deciding to unilaterally raise taxes?  To unilaterally raise taxes on particular named billionaires who are active in Republican party politics?  More unconstitutional than a Presidential declaration of war on Venezuela to acquire its oil fields for revenue?  On Canada for its tar sands?

Professor McConnell is now quoted in the latest NY Times article asserting, “I don’t think anyone in their right minds would buy those bonds,” as though this is somehow a devastating and original criticism of our position and the other two rationales for Presidential borrowing beyond the debt ceiling.  Yet in every one of our academic articles we have been careful to explain that unilateral Presidential borrowing would only be the least unconstitutional option if the markets cooperate. The only way to find out whether they would cooperate is to announce a proposed bond sale and see how large an interest premium the markets demand.  McConnell might turn out to be right but at this point he still hasn't offered any real analysis, just sound bites.

As I noted in an earlier post, Professor Posner's earlier criticisms of the Buchanan/Dorf approach are confused, at first rejecting our framework and then apparently endorsing it.  Posner's criticism in the latest Times article is not confused but is instead formalistic.  According to Liptak, "Professor Posner countered that the [Buchanan & Dorf] article was unrealistic. It would be political suicide, he said, for Mr. Obama to announce that he was violating the Constitution."  But this assumes that the core of our analysis calls for the President to say he is choosing the least unconstitutional option.  An entire section of our main article addresses the question of whether the least unconstitutional option should, ipso facto, be deemed constitutional.  We say that this is a plausible approach but that all things considered, it is more honest to evaluate each option as actually unconstitutional, citing Michael Walzer's concepts of dirty hands and tragic choices.  Our article is titled "How to Choose the Least Unconstitutional Option," not "How to Sell to the Public the Choice of the Least Unconstitutional Option."  If, at the end of the day, the President concludes that issuing unauthorized debt is the least unconstitutional option but President's political staff concludes that it is best to sell the least unconstitutional option to the public as constitutionally valid, he still will have complied with our decision procedure.  And I can't help but add that scholars who build their view of the American Presidency on the philosophy of a Nazi (as Posner and Vermeule proudly do in invoking Carl Schmitt with admiration), may not have their fingers on the pulse of what sells to the American people.

Finally, we come to Professor Tribe, whose views deserve to be taken seriously, even if they have been articulated somewhat cursorily.  In both the NY Times and Washington Post stories, Tribe refers to me and Professor Buchanan as "otherwise sensible", but avers that our approach "abandons the rule of law." I'm grateful that Professor Tribe thinks we are generally sensible (just as I think his conclusions are generally sensible), but his conclusion about the rule of law gets things just about exactly backwards.

In the summer of 2011, Professor Tribe argued in a NY Times Op-Ed that Section 4 of the Fourteenth Amendment is no magic bullet because it doesn't authorize the President to borrow without congressional authorization.  That piece and subsequent exchanges with me and Professor Buchanan were instrumental in our development of the trilemma argument.  Inspired by Tribe's observations, we came to see that anything the President might do would be unconstitutional, but precisely because of our commitment to the rule of law--the opposite of abandonment of the rule of law--we argued that even when the President has only unconstitutional options, his decision should be guided by law.  We acknowledged that there are few precedents for choosing among unconstitutional options, or as Professor Tribe now says, that "we have no metric for comparative lawlessness and are unlikely to agree on one in real time."

Fair enough, but if there is a genuine trilemma, then that is all the more reason for the development of a metric for choosing among unconstitutional options.  And that's why Professor Buchanan and I tried to develop one before the crisis reoccurred.  We built our proposed metric based on the two scant precedents we do have: Lincoln's all-the-laws-but-one speech and the Supreme Court's 1976 opinion in Nebraska Press Ass'n v. Stuart, in which the Court resolved a conflict between a criminal defendant's Sixth Amendment rights and the First Amendment rights of the press.  Perhaps Professor Tribe thinks we developed the wrong metric but he hasn't identified an alternative one, and if he agrees with us that all of the President's realistic options--including doing nothing--are unconstitutional, then I fail to see how he thinks the President can act without a metric for comparative lawlessness.  It seems to me that in giving up on the possibility of developing such a metric for comparative lawlessness, Professor Tribe is the one who is giving up on the rule of law.

The only escape hatch that Professor Tribe appears to have left himself is his claim (in the Liptak article) that there is no trilemma after all because "Congressional spending directives to the president contain an implicit condition that, if the money just isn’t there to be spent, the president must make tough choices — prioritizing repayment of bondholders who have lent money to our country over those who have been promised payment under various sorts of entitlements . . . ."  But this claim is false for two reasons.

First, it seems plainly wrong as a matter of statutory interpretation.  Professor Tribe would find an implicit authorization for the President to cut spending at his discretion in the teeth of Congress's explicit prohibition of the President doing just that in the Impoundment Control Act, which contains no exception for circumstances in which the federal cash register is empty.  I suppose one could argue that Congress wouldn't want the Impoundment Control Act to apply when the Treasury is out of money, but that is the sort of move that is usually forbidden in statutory interpretation: allowing the imagined unspoken intentions of Congress to prevail over its contrary enacted text.  Our various articles discuss the Impoundment Control Act.  Professor Tribe does not.

Second, as we explained in the second of our follow-up articles in the Columbia Law Review, even if one imagines that Congress enacted a statute delegating to the President the authority to cut budget items of his choosing by however much he deems appropriate in order to get below the revenue cap, that sort of sweeping delegation across the entire range of the federal budget would surely violate the nondelegation doctrine, at least absent some congressionally-supplied intelligible principle for prioritization, and here there is no such intelligible principle (which is hardly surprising because the delegation itself is imaginary).  If there is anything at all left to the nondelegation doctrine--and the cases repeatedly state that there is something left of it--surely this would be a textbook violation of it.  And as each of our articles emphasize, the Line Item Veto case, Clinton v. New York, strongly underscores this argument.

So, do I think that the arguments Professor Buchanan and I have advanced for our view are impervious to criticism?  Of course not.  I would welcome serious engagement by our critics.  But thus far--with the exception of thoughtful comments by readers on the blog--I haven't seen any such engagement.

20 comments:

Paul Scott said...

The "need for cooperation" retort is toothless. It is true that the markets have to cooperate for the illegal bonds to work (though surely the markets would cooperate at some price; we just don't now know that price).

However, it is equally true of every other option. If you want to create money, then you need the cooperation of the Fed to accept the deposit of the illegal money.

If you want to tax people, then you need their cooperation to not sue you to stop the taxation. The same applies to most spending cuts. You require the cooperation of those you are now not paying to not sue you for the value of the obligation.

The executive is going to do something illegal. Someone (or many someones, really) are going to have to cooperate and go along with the illegal act or it is not going to work.

Lloyd said...

Couldn't the government raise money while avoiding a constitutional violation by combating fraud (about 10% of the GDP)?

The Dismal Political Economist said...

The reason that Mssrs. Dorf and Buchanan have not had substantive commentary from their scholarly peers is that it is not possible to contradict their logic as a legal argument. It is impeccable.

But the problem here, as some of their critics have observed is political. In the eyes of the public borrowing in excess of the debt ceiling is a direct breach of the law. Not spending monies duly authorized and appropriated by the Congress and signed into law by the President is not perceived by the public as a Constitutional violation. And in politics, unlike rigorous scholarship, perception overrules reality.

Were Mr. Obama to ignore the debt ceiling the issue would immediately shift from the issue of default to the issue of a media/Republican inspired (false) Constitutional crisis. And besides, the President is winning, and will win if he can just stand firm. Adopting the Dorf/Buchanan strategy is legally correct, and while Henry Clay said “I’d rather be right than President” in this case it is better to be President than to be right.

Jll said...

If caught between violating an explicit constitutional principle such as separation of powers with respect to the power given to the congress alone to tax and spend, on the one hand, and violating an act of Congress like the Impound Control Act (even if rooted in SOP jurisprudence) or Wiretap Act, it seems an easy metric to avoid choosing to violate the explicit constitutional principle and violate the act. As a metric, isn't the least harm doing nothing where the duty to spend ends when there is no money to spend versus actively doing something that there is a duty to avoid?

In any case, The President doesn't have to choose between any unconstitutional options because there is a method to change the Constituton (the cases say that still works, right?). The President can carry out the duty to uphold the Constitution and protect the democracy by asking the states to ratify an amendment giving the President whatever power the President needs or wants to prevent taking an an unconstitutional option. That's the only real legal option; to add options using the process designed for that purpose. If no such option is given becaues amendments fail, then the President has exhausted all options and has no more duties, then taking no further action is the only action to legally take. If emergency powers can be used, let that be an emergency use of power to ask the people to give more options quickly. Emergency amendment before the debt ceiling==no more lemma.

Michael C. Dorf said...

Jill's comment contains reflects an idiosyncratic confusion and a widespread one. The idiosyncratic confusion concerns the Impoundment Control Act. Of course we agree that constitutional obligations take priority over mere statutory ones. As noted in the post itself, I cited the Impoundment Control Act here and in the law review articles in response to claims like those of Professor Tribe that there really isn't a trilemma because the appropriations laws permit less spending than they authorize. Tribe and the others are making an argument about what the appropriations laws mean, and so it's perfectly appropriate to cite another statute to explain why that interpretation of the statutes is wrong. This is not an argument about how to resolve a trilemma. It's an argument in response to the claim that there is no trilemma.

Jill's comment also contains the widely held but also wrong view that when the President spends less money than Congress has authorized he is "doing nothing" and thus not acting unconstitutionally. This is wrong in light of Clinton v. NY and the non-delegation doctrine, both of which are constitutional principles, not mere statutory ones.

Shag from Brookline said...

Adam H. Rosenzweig's "The Article III Fiscal Power" frequently references "Our Argument" and goes beyond to explore the potential role of the courts in the style of Joseph Heller's "Catch-22" applied to a "Constitutional Crisis." Can the principle of "Separation of Powers" break up the nation?

Michael C. Dorf said...

Right! Rosenzweig is a rare scholar who engages our argument, but he largely agrees with us (and then goes on to talk about his own issue, which is the justiciability of challenges to non-spending). I should have been clearer that we crave scholarly engagement from our critics.

Shag from Brookline said...

And some of us crave a scholarly response to Prof. Rosenzweig's issue of justiciability. Query: Might Obama have standing, etc, based upon the potential impacts of the trilemma on his potential impeachment threats and the collapse of the economy, with an extension of the "unprincipled" Bush v. Gore doctrine?

AF said...

Tribe's argument strikes me as persuasive as a matter of pure legal doctrine. The Impound Control Act and the non-delegation doctrine prevent the President from picking and choosing what programs to fund in ordinary times. They don't bear directly on the question as to whether there is an implied power to prioritize when there isn't enough money to go around. What if the lack of money was due (God forbid) to the credit markets closing their doors to the US government, rather than Congress's failure to raise the debt ceiling. In such a case, following the Impound Control Act would be physically impossible, and something like the absurd results canon would seem to dictate the existence of an implied power to prioritize spending. It's not clear why the analysis would be different where the impossibility is legal rather than physical.

That said, I disagree with Tribe's bottom line and agree with yours. But I think to get there, you need to rely more on a consequentialist analysis than you seem willing to do, even if doing so tends to blur the lines between your arguments and Posner/Vermuele. In this regard, it is a strong response to Tribe that even if his reading of the law is right, his reading depends not on an implied power to do what is necessary in difficult times. The idea that this implied power permits the president to prioritize spending despite the Impound Control Act, but not to issue debt despite the debt ceiling, may well be correct as a matter of sterile doctrinal analysis; since the debt ceiling explicitly imposes a limit on what the government can borrow, it seems difficult to read into it an implied power to borrow more simply because the government needs the money. Nevertheless, the putative existence of an implied power of necessity in one context but not another is a pretty thin justification for steering willfully into a world financial crisis.

So while I remain skeptical that issuing additional debt would be legal because, as a matter of law, it is the least unconstitutional option, I would accept a modified version of your argument, namely that the absence of any clear legal guidance as to what the president is supposed to do makes it consistent with the rule of law for him to make a practical judgment as to what course of action would be best for the country and the world, all things considered.

AF said...

Oops, a significant typo in my immediately preceding comment. There shouldn't be a "not" in the third sentence of the second paragraph.

The Dismal Political Economist said...

ABC News is reporting that Mr. Obama will not rule out invoking the 14th Amendment to issue debt.

Snatching political defeat from political victory, and showing once again why he has no credibility with Republicans or the rest of us.

Matt_Estrin said...

Professor Dorf,

Perhaps you've answered this in a different article, but why are you making the following claim: "we argued that even when the President has only unconstitutional options, his decision should be guided by law." (emphasis added)?

I don't understand how the three options you say are unconstitutional are the only options. I see at least 2 more options that are clearly constitutional 1) The President does nothing and 2) The President agrees to whatever the opposition wants to raise the debt ceiling.

I know some have argued that defaulting by not raising the debt ceiling is unconstitutional, a claim which I don't agree, but that seems to be Congress acting unconstitutionally, not the President. So the President not doing anything is not unconstitutional.

And the second, while not politically appealing, is certainly constitutional.

So the President isn't left with only unconstitutional options. He has constitutional, albeit undesirable, options. But I can't see any way to argue that the undesirability of these two options trumps the unconstitutional options that you address. I think Congress's threats to not raise the debt ceiling are in themselves damaging, and the failure to raise it catastrophic, but that doesn't give the President the authority to act unconstitutionally, at least not when constitutional options are available.

The Dismal Political Economist said...

@Matt

I don’t think you understand the nature of the options here and that “doing nothing” is never an option because it is impossible to “do nothing”. In decision theory “doing nothing” is the same as accepting the default option, the option that takes place when one makes no specific selection. Doing nothing is the passively equivalent of deciding to actively select the default (in the programming sense, not in the debt sense) option. For example, when you reach an intersection and stop you cannot do nothing. You must proceed, turn left, turn right or cease to move. If you do nothing you have selected the option of ceasing to move.

Assume you have your credit card bill and it is due today and you do not have the funds to pay it. You could (1) ask the credit card company for an increase in your credit limit(raise the debt ceiling), (2) decide not to make the payment (default), (3) take money from some other scheduled expenditure (reduce expenditures) or (4) take money from another person (raise taxes). But if the credit card company refuses to raise your credit limit, you cannot do nothing. If you do nothing, then your have selected the “default” (in both meanings of the term) option.

As for your second idea, agreeing to the demands of the opposition, this is the same as legally and Constitutionally raising the debt ceiling, because that is the result. But this option is irrelevant to the discussion which is generated entirely by the fact that Mr. Obama does not want to agree to the conditions, and if not what are his options then. As Mr. Dorf and Mr. Buchanan have pointed out, there are three analogous to points 2, 3 and 4 above, all of which are Unconstitutional and one of which is in their entirely correct and well reasoned opinion, does the least damage to the Constitution.

In fact it can be argued that by agreeing to the conditions imposed by the Republicans for raising the debt ceiling Mr. Obama is acting and allowing the House to act in a de facto Unconstitutional manner. The reason for this is that he is allowing one house of the Congress to impose on both the other house and the President a law which neither the other house nor the President wish to accept. This is contrary to the Constitution in a de facto sense in that in order for a bill to become a law it must pass both houses of Congress and be signed by the President, and in this case the only way that would happen is by extortion of the House Republicans. Surely that is not what the Founders had in mind and to allow this to happen would be a unilateral change in Constitutional government in the United States. And furthermore it is my understanding of the law that agreements made under duress like extortion are not legally binding. So it seems to me that what you think is a Constitutional option, agreeing to the conditions imposed by the Republicans for allowing a debt ceiling increase, is the option that does the most damage to the Constitution and the rule of law.

Matt_Estrin said...

@DPE

I understand all of that. But in your credit card example the credit card company has no duty to raise the limit. The argument doesn't map onto this crisis where Congress does have that duty. Congress failing to do its constitutional duty (if the argument that allowing a default is unconstitutional) is not grounds for the President to act in kind. Failing to pay the debt because Congress hasn't provided the President with the funds is not the President acting unconstitutionally, so default is a constitutional option for him.

As to the second one, calling it extortion is a bit much. The reason that we have a separation of powers and bicameralism is just so debates on what is best for the nation exists. Bargaining among the branches and chambers of Congress is always happening. The Republicans (or more accurately the Tea Party) thinks spending is way out of control and needs to be curbed before we take on more debt (and of course think Obamacare as a major source of expenditures is dangerous and unconstitutional law). They are using the debt ceiling to bargain with. We can argue whether they should, as I said before I don't, but it isn't extortion to do so and the bargaining is exactly how politics and contract law work. In fact I can similarly argue that the President and Senate are doing the same thing. They may want to raise the debt ceiling, but they are refusing the conditions the House wants. And they are trying to "extort" them into agreeing to drop their conditions with the threat of the default. It goes both ways. Neither side is bending. Unless the Tea Party were to come out and say we aren't raising the debt ceiling, period, no conditions can convince us to, then both sides are necessarily standing firm on their positions preventing the debt ceiling increase. So to label one extortion but not the other reeks of partisan spin.

Further saying the second option is irrelevant because he doesn't want to agree so what are his options is wholly without merit. The entire point of the article is that when the President has three unconstitutional options he should and can choose the least unconstitutional. But this only makes even perfunctory sense if there are ZERO constitutional options. We can't just say he doesn't want to do the constitutional option so since all the others are unconstitutional he can pick the one that is least. The Constitutional option is by definition the least unconstitutional method, so that must be what he chooses. If anything is irrelevant then, it is whether he can pick an unconstitutional option when only they exist, since in this case that isn't true.

The Dismal Political Economist said...

@Matt

I would still argue that we seem to be talking at cross purposes here.

1. The basis for this discussion is that the President is not willing to allow the U. S. to default. If he is, then this whole discussion ends. You seem to be advocating that he should allow default, which is fine if that is your position, but this discussion is based on the idea that the U. S. should not default, and how to accomplish that in the absence of Congress raising the debt ceiling.

2. In fact, no one (except 14th amendment advocates) is arguing that allowing a default is Unconstitutional. This discussion of options is predicated on the desire to avoid a default and its potential horrific consequences. So the “do nothing” and allow default (which of course is not “doing nothing”) is not relevant in this discussion.

3. The question here is whether or not the President has an option to prevent default in the absence of an increase of the debt ceiling that is Constitutional. As Mr. Dorf and Mr. Buchanan have explained, he does not.

4. Also, you seem to be taking the position that Congress has a constitutional duty to raise the debt ceiling. I know of no basis for that position nor do I think anyone has taken that position in this discussion. You are correct, the credit card company has no duty to raise your credit limit, but neither does the Congress have a Constitutional duty to raise the debt ceiling. Exactly what is the basis of your assertion that they do have a Constitutional duty to raise it? Are you arguing 14th Amendment? If so, then what, how would you force the Congress to act in what you perceive as a Constitutional manner?

5. Sorry, this is extortion in its purest form. Extortion is the use of a threat of injury or damage to force an individual or institution to do something that they would not do in the absence of the threat. This debate is not business as usual, it is not bargaining, it is not whether or not the Congress will agree to new programs or new expenditures. It is extortion pure and simple. The Republicans are saying that unless you agree to our demands we will not allow the government to pay its bills/debts as they come do and we will cause the U. S. and maybe the world financial systems and economies to suffer major damage.

6. Let me reiterate, if the Republican strategy succeeds it will have fundamentally altered the structure of U. S. government because it will mean that one House of congress can impose its will on the other House and on the Executive.

There is no legal basis for your saying the “Constitutional option is by definition the least unconstitutional method”. If Mr. Obama does not want and will not accept default he will be acting in violation of the Constitution, period. Mr. Dorf and Mr. Buchanan are taking the position that he should act in an Unconstitutional manner that does the least damage to the Constitution, not that what he does will be Constitutional. So yes, you are correct in that the President could take the Constitutional option and allow default. But that is not the issue here, it never has been.

Sam Rickless said...

Re: "That is the sort of move that is usually forbidden in statutory interpretation: allowing the imagined unspoken intentions of Congress to prevail over its contrary enacted text."

I completely agree. But in that case, I am back with the platinum coin option. The "enacted text" of 31 USC § 5112 (k) reads thus:

(k) The Secretary may mint and issue platinum bullion coins and proof platinum coins in accordance with such specifications, designs, varieties, quantities, denominations, and inscriptions as the Secretary, in the Secretary’s discretion, may prescribe from time to time.

Surely it is right that the "imagined unspoken intentions" of Congress at the time concerned the minting of coins for purposes other than the purpose of avoiding a debt ceiling crisis. But if enacted text trumps unspoken legislative intentions, then what we have here is a fourth option (beyond unilaterally cutting spending, raising taxes, or raising the debt limit). Jack Balkin thinks there is a "colorable" argument here, Paul Krugman favors it, Philip Diehl (who drafted the language of the statute) favors it, Larry Tribe favored it (at least at one point, perhaps now too), and I'm not seeing the problem with this solution. Of course, it's academic, given that the President has said that he won't do it. But that doesn't mean it isn't actually *the* best solution to the problem. Maybe there's a lot of back and forth that I've forgotten, but I guess I'm still stuck with the exchanges that happened in the comments here: http://www.dorfonlaw.org/2013/01/big-coins-political-credibility-and.html

At the time, you said that the problem with the coin gambit is that it is not realistic. But if all the other options are unconstitutional, then they are off the table if there is a constitutional solution, unless the constitutional solution causes the world to blow up (or something). The fact that the President thinks the coin gambit is silly makes it "unrealistic" in some sense, but that doesn't mean that it isn't technically his only option.

P.S. I haven't been following the recent exchanges on this issue. So I apologize if I missed a knock-down argument that shows the coin gambit to be unconstitutional.

Unknown said...

I'm interested to know the authors' thoughts on the following propositions: isn't there one, and only one, way for the President to avoid a default while at the same time not getting into thorny questions of "least unconstitutional options"? And isn't that one way simply to cave to Republican demands and sign a bill conceding their policy extortions?

I understand that this would the most undesirable, worst possible outcome of this fight over the debt limit. I understand the threat it would pose to all future negotiations over budget and policy. I am also persuaded by arguments that the debt ceiling itself is unconstitutional. And I am persuaded by your arguments that the least unconstitutional option of the three you propose is for the President to unilaterally raise the debt ceiling. But if we're getting into possible abuse of executive power and questions of the president executing powers that the Constitution explicitly reserves to Congress, wouldn't the best option be to preserve our system of government and concede to almost anything that avoids blatantly unconstitutional action? As hard as that course of action would be to swallow, and as threatening as it would be to future negotiations over debt, policy, legislation, etc., shouldn't the President's number one priority be to uphold the Constitution by whatever means necessary, even if that includes conceding to demands made under the threat of killing the hostage?

Michael C. Dorf said...

I addressed Unknown's query in another post:
http://www.dorfonlaw.org/2013/10/is-capitulation-to-hostage-takers.html

Unknown said...

Yes, I saw that about two minutes after I posted the comment. Sorry...

The Dismal Political Economist said...

And let me reiterate. Acceding to the demands of the House is the options which does the most damage to the Constitution. It would fundamentally change the U. S. government into a Parliamentary one, where the Speaker of the House becomes the Prime Minister, the Senate becomes a House of Lords made up of stuffy, privileged windbags who mostly rubber stamp what the House does and the President becomes a popularly elected monarch with only ceremonial duties.

Is this what you and others who claim the President should negotiate with the House under duress support?