Friday, November 15, 2013

The Rhetoric of the Debt Ceiling Debate, and the Happy Cuddly Puppy Option

-- Posted by Neil H. Buchanan

In yesterday's post, I returned to the question of whether the President has any power under the Constitution to end a government shutdown.  In a post two weeks ago, I had described an argument from the historian Sean Wilentz, who claimed that President Obama could have simply ended the October shutdown unilaterally, by analogizing Tea Party-led nihilism to the insurrections that Andrew Jackson and Abraham Lincoln overcame with executive action.  Although I had initially felt some attraction to the Wilentz argument, I ultimately came down against it.

My initial post describing that argument was written on November 1, after I had participated in a quasi-debate at the National Constitution Center in Philadelphia.  That event, however, was mostly concerned with the debt ceiling, not the shutdown.  Professor Wilentz advocated what is now known as "the Fourteenth Amendment argument."  I argued the Buchanan-Dorf "least unconstitutional option" argument.  The third panelist, Ilya Shapiro from the Cato Institute, argued against both positions.  Because my November 1 post focused on the shutdown, I have not yet written down my takeaways from the debt ceiling portion of the Philadelphia debate.

To a certain degree, the debate was not a true airing of different opinions.  The panel was "balanced" in a way that made some sense under the circumstances, with two liberals taking different positions and a conservative/libertarian disagreeing.  The problem is that, as Professor Dorf and I have been saying for some time, the merits of the debt ceiling debate really should not line up along standard liberal-conservative lines.  There is as much reason for conservatives and libertarians to agree with us as there is for liberals to do so.  Only conservative commentators who view their role as being on-call advocates for the Republican Party's argument du jour would automatically take the position that the debt ceiling is the most important law on the books.

Whatever else one might say about the Cato Institute, it is most definitely not a reliable lapdog for the Republican Party.  On the debt ceiling issue, in fact, the institute's director had written a commentary in 2011 that was highly congenial to the arguments that Professor Wilentz and I have made about the Fourteenth Amendment.

But Mr. Shapiro understood that the point of the quasi-debate was to generate (friendly) disagreement, and he gamely agreed to argue as aggressively as possible that the debt ceiling is inviolable.  He thus made the various arguments that have been reported in the press, and tried to argue the points as well as he could (given his lack of commitment to them).  If anything I write here sounds like criticism, therefore, it is aimed not at Shapiro but at the arguments that he channeled for the sake of the event.

In any case, I came out of the event with a renewed appreciation of the extreme degree to which the debate over the debt ceiling has been driven by purely rhetorical, non-substantive arguments.  In any debate about legal and constitutional principles, of course, the discussion will center on the meanings of words.  Line-drawing will matter, categories will be distinguished, and so on.  Even so, it has continued to amaze me that the people who disagree with my position on the debt ceiling have so nakedly relied on empty rhetoric.

One simple example is the tendency to characterize the Buchanan-Dorf position as "having the President blow past the debt ceiling."  Our position is exactly the opposite: It is Congress that has exceeded the debt ceiling, even as it has refused to increase it, and the President's least-bad choice is to honor the obligations to which Congress has already committed the country.  Still, the "blowing past the ceiling" rhetoric has been a recurrent theme in media coverage.

More fundamentally, the rhetoric is driven by misuse of the word debt itself.  Professor Dorf once described the Republicans' political use of the term "debt ceiling" as little more than a pun (or, at best, a bad play on words): People do not like debt (for reasons that are completely misinformed, but I digress), so we can solve that problem by putting a ceiling on the debt.  Of course, you can call the debt ceiling law anything you like, but it does not change the reality that people who want to limit debt can do so only by making legal commitments that require less borrowing.

The other play on words, which I have noted in the past, is the use of the term "cut spending" to describe what the President would do if he were to decide to default on the nation's legal obligations.  Again, the public has come to believe that "government spending" is a bad thing (for equally misinformed reasons, with Republicans largely abetted by Democrats in convincing the public of a gross distortion), so they do not understand what is so bad about having the President stay under the debt ceiling by "cutting spending."

Even Professor Dorf and I have both used the term "cut spending" in our various writings to describe what the President should not do if faced with a trilemma.  But that is an imprecise phrase, because it misses the key distinction between spending to which the government is already legally obligated, and decisions about spending levels that might be made in the future.  It is misleading to apply the term "spending cuts" to an affirmative decision to default on the government's legal obligations, and it gives undue credibility in the public's mind to what should properly be understood as violating the law.

At one point during our debate in Philadelphia, Mr. Shapiro ventured another line (not really an argument) that has been proffered by other critics.  When Buchanan and Dorf describe something as "least unconstitutional" (which is the key term in the title of our first article about the debt ceiling), the claim is that this makes as little sense as saying that one pregnant woman is "less pregnant" than another pregnant woman.  Pregnant is pregnant, and unconstitutional is unconstitutional.

This is, at an initial level, just another example of the failure by those who disagree with us actually to engage with our arguments.  We discussed this very question at length in our scholarship, but people who never bothered to read past the title of the first law review article would not be aware of that.

More to the point, however, it simply does not matter what we call it.  Even if one took this non-argument to be more than a punch line, where would that leave us?  The President still has nothing but unconstitutional choices, including the one that some people incorrectly describe as doing "nothing" (that is, refusing to honor the government's financial obligations, in full and on time).  Once we have stopped giggling about whether a woman can be a little bit pregnant, what are we telling the President to do?

In other words, saying that one cannot compare degrees of unconstitutionality does nothing to solve the President's trilemma.  We could just as easily have called our recommendation the "constitutionally required option," but we wanted to be clear that the Republicans are irresponsibly forcing the President into a constitutional bind.  Objecting by saying that all of his choices are unconstitutional merely recognizes the puzzle, without giving the President a decision rule.

Last month, Professor Dorf engaged with another rhetorical move by one of our detractors, Professor Eric Posner.  Posner's complaint was that we had said that the President would have to choose among unconstitutional options, but he argued that there was no way a President would ever publicly utter the words, "I am choosing this unconstitutional option, because it's less bad than the others."  No President could ever admit that he was acting unconstitutionally.  Professor Dorf eviscerated that argument, showing that Professor Posner's rhetoric about rhetoric was even more silly than usual, because it simply does not matter whether the President describes his choices as "least unconstitutional" or "constitutionally required," or anything else.  Political salesmanship is completely irrelevant to our constitutional analysis.

Which brings me back to the title of this post.  Maybe our "least unconstitutional option" needs a new name, to satisfy the people who have become fixated on that term.  I therefore propose that henceforth, the Buchanan-Dorf recommendation be known as “the happy cuddly puppy option.”  The underlying argument is that the Constitution requires the President to treat appropriations laws and tax laws as more important than the debt ceiling law, but people who need a different label can use the new one.  Or, maybe people could grow up and pay attention to the substance of the argument.


Bob Hockett said...

Trenchant and comprehensive as ever, Neil - many thanks.

Further to your suggestion at the end, perhaps a poll would be in order, per which readers proffer and ultimately vote upon other possible names for the LCO.

My first proposal: The Freedom Option. Or perhaps: The Preserve Our Freedom Option.

Thanks again,


t jones said...

I second that, and further suggest that we start calling the do nothing/default option the "Surrender" or the "French Option."

tjchiang said...

I would very much agree with a renaming, but for exactly the opposite reasons as you perceive. Your "least unconstitutional" analysis strikes me as using a very different measure of "degree of unconstitutionality" than what is most intuitive. To me, the most intuitive measure of relative unconstitutionality is the legal plausibility of a particular suggested option. For example, on the platinum coin option, even if one concludes that a platinum coin is not authorized by statute (a proposition I doubt, but accepting here for argument's sake), one surely must also conclude that it is relatively more plausible that a platinum coin is authorized by statute than an issue of debt beyond the debt ceiling. There is at least a textual argument for the former, while the latter is an open and shut case. That, it would seem to me, makes the platinum coin less likely to violate the take care clause and "less unconstitutional."

Your analysis differs because you actually treat "unconstitutionality" as something of a dichotomy: once you conclude the platinum coin and breaching the ceiling are both unconstitutional, you do not consider their relative legal plausibility but instead immediately jump into an analysis of which most comports with Congress's spending and tax decisions. There might be arguments for your measure, but fit with the label of "least unconstitutional" does not strike me as among them.

Michael C. Dorf said...

I disagree with TJ's claim. Although Neil and I each wrote blog posts explaining why we thought that, all things considered, jumbo coins are not authorized by statute--and thus the President would act unconstitutionally by issuing them--that was not the ground we offered in our academic articles for rejecting jumbo coins. There we said that in considering the President's field of options, one should only consider realistic, non-insane possibilities and we judged jumbo coins to be unrealistic. We also ruled out some other possibilities that one might think consistuitonal. If one were to reject our assessment of the jumbo coins, then yes, things might look different. But the main point was that when we said that unauthorized debt was the least unconstitutional option, we meant (and clearly said) that it was the least unconstitutional of the three (stylized) options of unauthorized debt, unauthorized taxation and unauthorized spending "cuts".

Moreover, even accepting TJ's framing arguendo, I think he's wrong on the semantics. Under his view, jumbo coins might be characterized as "the option least likely to be unconstitutional", which is not the same thing as the least unconstitutional among all unconstitutional options.

Still, I agree that "happy cuddly puppy option" is even better.

tjchiang said...


1. True enough that your argument in your article does not consider jumbo coins beyond dismissing them as insane. But (a) I wasn't addressing your article in particular but what I perceived to be your idea, and I assumed (I believe reasonably) that your blog posts were reflective of the underlying idea, (b) the challenge is to the analytical paradigm and not to the particulars of the jumbo coin option. That is, to me, the assessment of spending cuts versus issuing debt, if the measure is to be about "least unconstitutionality," should also be about the legal strength of the argument against constitutionality rather than about the amount of "policy-making" done by the president. I chose the jumbo coin simply to illustrate how the analysis would proceed. If it were spending cuts versus issuing new debt, to me the question is still whether the legal case against spending cuts is more or less clear-cut than against issuing more debt. It is simply because that is a closer question than jumbo coin versus new debt that I did not use the example.

2. You are right that it is a semantic dispute, but it matters. Just as you can describe my analysis as choosing "the option least likely to be unconstitutional when faced with options that we conclude are all more-likely-than-not unconstitutional," I can describe you analysis as choosing "the option that involves least presidential policy-making when faced with options that we conclude are all more-likely-than-not unconstitutional." And I submit that describing yours in that manner does not sound nearly as good as "the least unconstitutional option when all options are unconstitutional." We all agree at a facial level on that last formulation, but we have a real contest about what that formulation means, and I do not think you can claim some natural reason why your substantive formulation better maps onto the agreed-upon label than mine.

Michael C. Dorf said...

TJ: Thanks for the clarification. In writing the first paper, Neil and I considered the possibility of adding another factor in our calculus of what makes for the least unconstitutional option: the decision maker's degree of confidence that the particular option in fact is unconstitutional. We decided to leave this out because we thought that it would be more confusing than helpful in the particular examples we considered--where we were quite confident that all of the relevant options were in fact unconstitutional. Because the notion of degrees of unconstitutionality in this context was itself quite novel, we omitted the dimension you are now suggesting.

If one were to consider "probability of unconstitutionality" as a factor or, as you appear to suggest, as the only factor in the judgment of the least unconstitutional option, then one would want to be clear about what this means. Is it the confidence level one has that the Supreme Court would find a course of action unconstitutional? If so, why? Does the definition differ in circumstances in which one thinks there is unlikely to be a justiciable case in the courts? Etc. Gary Lawson wrote a very interesting article some years back called "Proving the Law" in which he grappled with some of the issues that might arise in a related context.

In any event, I continue to think that reserving our nomenclature for comparisons among concededly unconstitutional options makes more sense than using it to refer to probabilities of unconstitutionality, but it's much more important to me that the argument be understood, whatever it's called.

tjchiang said...


That is helpful, and I think we are mostly on the same page. I agree that, if we are going to consider "probability of constitutionality," we need to clarify what it means. And indeed I would prefer to call the consideration the "strength" of the case rather than the "probability," precisely because the word "probability" invokes the realist notion that the strength of a case is only whether one is likely to get five votes from the Supreme Court. I have in mind a notion of legal strength that is distinct from that purely predictive notion, but that I admit is hard to articulate.

All of this can quickly devolve into a philosophical discussion about whether legal analysis has any content beyond being just a prediction of getting five votes, and if so what that content is. Let me try to short circuit that discussion. It seems to me that your analysis already invokes a rather legalistic analysis in a predicate step. That is, it seems to me that your analysis really looks something like this: (1) figure out, based on fairly legalistic considerations (text, precedent, policy in a narrow sense, etc.), whether an option is “constitutional” or “unconstitutional”; (2), if it goes into the “unconstitutional” category, then figure out, based on the degree of presidential policy making, the relative degree of unconstitutionality.

Step (1) seems to me to implicitly assume that legal analysis is something more than just a prediction about five votes. But even if I am wrong about that, if I have the basic structure of your argument right, then my point is that you should use at step (2) the same criteria as you do in step (1), whatever the criterion is. If we are going to determine the "constitutionality" or not of something by legalistic analysis, we should determine the relative degree of constitutionality by the same metric.

Another way of saying this is that an essential predicate of your argument is that the concept of "constitutionality" is not dichotomous but is a spectrum. Given this, I don't understand why in step (1) you seem to be treating it as a bright line threshold.

Michael C. Dorf said...

Ah, good. Let me see if I can close the loop and we'll either have complete agreement or an agreement about where we disagree.

1) Yes, we favor a legalistic rather than probablistic view. (One of my early articles, Prediction and the Rule of Law, UCLA L REV, took a strong position against the probablistic view.)

2) We are not, in principle, against including a factor for what you call strength in what you're calling the step 2 analysis. We left it out in the articles thus far because in the cases we considered, we regarded the arguments for the unconstitutionality of the various options as all very strong. However, in different circumstances, strength could be a decisive factor in figuring out which among POSSIBLY unconstitutional options is the least unconstitutional.

3) But, and this may be our remaining point of disagreement, I would not want to say that the step 2 analysis is ONLY about strength. Suppose a case in which a president or other legal actor has two realistic options. He believes to a 60% level of confidence that option 1 is unconstitutional but it would be a relatively minor, easily repaired, constitutional violation. He believes to a 70% level of confidence that option 2 is unconstitutional but it would be a massive and mostly irreparable constitutional violation. Our view is that even taking account of strength, option 1 is, all things considered, the less unconstitutional option. I'm not sure that you agree, because I understood you to be saying that "least unconstitutionality" is simply a measure of the legal strength of the argument for unconstitutionality.

tjchiang said...

I think we are on the same page. There is a substantive point and a semantic point.

1. On the substantive point, the question is what, as a normative matter, should go into the step 2 analysis. I don't have a strong commitment here. I can see arguments for different options, including (a) it should only be about legal strength, (b) it should only be about what we think produces the best outcome in the totality of circumstances, (c) it should be about minimizing irreparable harm, (d) it should be about some other combination of considerations. My prior comments suggested some strong version as of (a), but I'm not actually strongly committed to that as a pure normative matter. So on this point I think we are, if not in perfect agreement, at least not in serious disagreement.

2. What I am committed to is a semantic point. If the analysis is (b), then I would call it "the best unconstitutional option." If the analysis is (c), "the least irreparable option." And it continues to strike me that "the least unconstitutional option" evokes (a).

To take an analogy, we can rate cars as "safe" and "unsafe," but of course the concept of safety is a spectrum and not a dichotomy. If I were limited to choosing among three cars that had been rated "unsafe," I can see at least two different arguments for how I should choose: (i) I should choose the safest option among all the death traps, or (ii) I should choose based on some set of criteria that considers relative safety, but also other factors such as price, ease of altering the car to make it safer, etc. On serious thought, I would actually think (ii) is the better analysis. But I would find it inaccurate to call it choosing the "least unsafe option."

You seem to be unconcerned with the semantic point as far as it is just a semantic point. But I think the label matters, because I think many people's first gut intuition if you ask them to choose among certified death traps is to choose the "least unsafe" one out of them.

tjchiang said...

I couldn't resist adding postscript, which is not at all intended to quarrel, and is offered in a friendly spirit.

My first intuition on thinking about the least unconstitutional option analysis was what we have come to denote as position (a), where the metric is solely about legal strength. Our conversation has moved me away somewhat from that initial intuition, and for that I thank you. But I continue to think that the intuition is not obviously stupid, and is likely to be shared by other people. For you to gain any traction with your argument, I suggest that you need to engage with it more.

I specifically have in mind Michael McConnell's argument that your bottom line proposal was the "most unconstitutional option." Although I obviously can't speak for him, when I read that the argument made perfect sense, because to me he seemed to be saying that, under a legalistic metric, it is hard to find anything more clearly and directly implied by the constitutional text than the prohibition on borrowing money without congressional authorization, and, in comparison, the prohibition on failing to spend appropriated funds requires several more moves. Thus, I for one found your dismissal of McConnell's argument to be rather unsatisfying at the time. I now have a pretty good sense of what your response would be. I think replicating this on a broader scale would be beneficial.

Michael C. Dorf said...

Thanks again TJ. One final addendum: I'm not sure Prof. McConnell meant his "most unconstitutional option" comment in the legalistic way that you have helpfully elaborated here, but even if so, my main reason for not taking it seriously was not that he considered unauthorized spending cuts less unconstitutional than unauthorized borrowing; it's that he seemed to be making a purely rhetorical point, because he unmistakably implied that he regards unauthorized borrowing as more unconstitutional than unauthorized taxation. Yet there is no reason--legalistic or otherwise--for thinking so, and he offered none.

Paul.K said...

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