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.