Friday, November 01, 2013

What Can We Say About Government Shutdowns That Is Not (Completely) Related to the Debt Ceiling?

-- Posted by Neil H. Buchanan

Throughout our extensive writings (individual and collaborative) about the debt ceiling, Professor Dorf and I have tried to distinguish the questions regarding the debt ceiling from the very different questions surrounding government shutdowns.  For example, in our third Columbia Law Review piece, we talk at length about the difference between the President's options when appropriations laws are already in place (through the regular budgeting process, or through a continuing resolution) and his more limited options when there are no duly-enacted spending laws for him to execute.

Our analysis was based in part on our assumption that the "expiring" spending provisions included in annual budgeting laws were numerically significant enough to determine whether or not the President would face a trilemma.  That is, our analysis assumed that the ongoing appropriations (for "essential" personnel, for interest payments, for Social Security benefits, and so on) added up to a number smaller than the total amount of taxes that would continue to be collected under existing tax laws.  That assumption drove, among other things, my "Happy New Trilemma" post this past April.

We now know, based on the insane government shutdown from October 1-17, that that numerical assumption was incorrect.  We faced a potential trilemma even after the government was shut down, because the non-expiring spending appropriations were large enough to exceed tax revenues.  The country thus faced the worst of both worlds: a damaging shutdown, even as we faced a potential catastrophic default.

As a matter of the legal analysis surrounding the debt ceiling, however, nothing changes in light of this numerical reality.  The President would still face a trilemma, and his least bad option would still be to honor the spending obligations, even though that would require that he issue debt in excess of the debt ceiling.  An important related question, however, is whether recent experience tells us anything new or useful about government shutdowns.

Earlier this week, I participated in the first "Town Hall Tuesday," a new series of events sponsored by the (federally-funded) National Constitution Center in Philadelphia.  My GW Law colleague Jeffrey Rosen has recently taken on the role of President and CEO of the Center, and he invited me, along with Princeton historian Sean Wilentz, and Cato Institute analyst Ilya Shapiro, to engage in a quasi-debate about the debt ceiling and the government shutdown.  (The audio of the one-hour event can be found here, and the video is here.)

I plan to write up some thoughts about the debt ceiling portion of that discussion for another blog next week.  Here, I will first engage in adolescent triumphalism by noting that Professor Rosen conducted a vote by the audience after the debate, and the vote was overwhelmingly (approximately 70-75%) in favor of my position.  As the kids say: Woo hoo!

More importantly, however, I want to take the opportunity to expand on the discussion regarding the President's options when faced with a shutdown.  On that subject, Professor Wilentz's thoughts were thought-provoking, to say the least.

In response to a question about shutdowns, I started the ball rolling by suggesting that a shutdown is an inevitable possible consequence of the dynamics of deal-making.  If two people are negotiating over the sale of a house, for example, the seller's rock bottom price might simply be higher than the buyer's top-dollar offer.  When that happens, there is no sale.

As it stands, it would seem that the federal government (like most state governments) operates under laws that force the government to shut down when the two sides to a negotiation fail to find a mutually-acceptable deal.  There are alternative approaches, of course.  For example, David Gamage and David Louk (a Berkeley law professor and a Yale law student) have recently proposed a "default budgeting" law for the federal government.  (Their op-ed in the Los Angeles Times can be found here, and their working paper is here.)  Essentially, Congress would pass a new provision mandating continuation of existing spending commitments in the event that the parties cannot agree on a new set of spending commitments.

There is much to be said for the Gamage-Louk approach.  Unfortunately, Congress would have to adopt that rule, by majority vote in both houses.  Although Republicans apparently feel quite burned by the recent shutdown (but not so much about the debt ceiling), it is still difficult to see them affirmatively voting to put all of the federal budget on "automatic pilot."  The howls of protest from the party's base (and not just Tea Partiers) would be a thing to behold.

The point, in other words, is that one side of the current political divide is fundamentally committed to holding onto its nuclear weapons.  As I have noted recently, the Republicans are quite open about their belief that their relevance in Washington rides entirely on their ability to threaten unprecedented damage to the country, if they do not get their way.

What this really means, of course, is that they do not like the idea of having to negotiate in the normal way that people negotiate.  It is quite possible, after all, to imagine a deal that the Republicans could have offered the Democrats that would have resulted in the repeal of the Affordable Care Act.  They could have offered to substitute single-payer health care (essentially, expanding Medicare to everyone, regardless of age), for example.  Or they could have offered to increase the minimum wage, and index it to inflation.  Or they could have offered to repeal the debt ceiling.  If they truly believe that "Obamacare" is the worst law ever, then Republicans should have been willing to pay a high price to make it go away.

Negotiations, in other words, usually proceed by having each party offer the other side something appealing, in order to tolerate something unappealing.  Republicans refuse to contemplate doing anything that might actually be appealing to Democrats, so their only option is to take hostages.

And this is where Professor Wilentz's comments in Philadelphia were especially interesting.  His "debating position" on Tuesday was to advocate the 14th Amendment position, under which the President would invoke the Public Debt Clause to prevent a default, in the event that Congress refused to increase or repeal the debt ceiling.  (I agree with him on that, of course.)  The substance of his argument, however, offered some hope not just to avoid future debt ceiling crises, but also to avoid future shutdowns.

Professor Wilentz recently wrote a piece in Rolling Stone, in which he argued that the President must take bold action in the face of unconstitutional "insurrection" by members of Congress.  He invoked Andrew Jackson and Abraham Lincoln, juxtaposing their aggressive use of executive power against the lawyerly passivity of James Buchanan (no relation!).  Wilentz was quite emphatic that there must be limits to the President's powers, lest his position be compared (as it had been) to John Yoo's "unitary executive" view of absolute Presidential power.  (For those who might have trouble placing the name, Yoo is the George W. Bush adviser who authored the "torture memos.")

Even acknowledging that the President cannot take an "all bets are off, I'm in charge here" approach, our discussion suggested that the President might be able to invoke a Jackson/Lincoln line of thinking in the face of a possible shutdown.  To some extent, we have already seen this in action, when Secretary of Defense Hagel simply announced a day or two into the recent shutdown that all of his employees were to return to work immediately.  Hagel said, in essence, that some things are too important to allow them to be stopped, even when Congress and the President are in a stalemate.

I offered the thought that the Constitution requires the sides to find common ground, to allow the government to continue to operate.  Unlike the buyer and seller of a house, whose disagreement simply leads them to walk away from the table (with the buyer looking for other houses, and the seller looking for other potential bidders), a failed negotiation over appropriations has much higher stakes.  There are no other buyers or sellers.  Luckily, the number of items over which the two sides can negotiate is almost infinitely expandable.  If professional sports teams can negotiate four-team deals with multiple players switching teams, Republicans and Democrats can surely find ways to add sweeteners involving labor laws, corporate taxation, reproductive rights, environmental regulations, and anything else that might result in a deal.

In other words, the Republicans' absurd wish-list from September, when they demanded all kinds of non-germane concessions to prevent a shutdown and a default, is half of the potential answer to a shutdown.  The two sides have a responsibility not to walk away from the table.  Democrats have their wish-list, too, and the essence of governing is finding the combination of cringe-inducing concessions and delightful "wins" to make a deal go forward.

In Philadelphia, I offered the thought that Professor Wilentz's 14th Amendment argument might contain the core of a solution to prevent government shutdowns.  If the two sides cannot do their constitutional duty and find some deal that works, the President could extend the current appropriations laws until they do so.  He would thus take the threat of serious economic damage off the table.

I should emphasize that these thoughts are preliminary, and that I have some concerns about them.  The biggest contrast to the Buchanan-Dorf approach to the debt ceiling, of course, is that the limiting principle is so elusive.  Whereas Buchanan-Dorf simply says that the President should issue debt in an amount sufficient to obey Congress's orders regarding spending and taxes, the argument that I describe here says that the President (a political actor) must play referee, refusing to shut down the government because both sides to the negotiation have not done their mutual duty to reach a deal.  The possibility of opening up a Yoo-like abuse of power does scare me.

Even so, Professor Wilentz is surely right that the President's oath of office obligates him to prevent an outbreak of stupidity by one party from inflicting needless damage on the country.  Different Presidents wield their powers differently, and there is no doubt that some Presidents would wield this power in ways that I would find objectionable.  Saying that the President never has the power to prevent such damage, however, strikes me as an abdication of responsibility.


Michael C. Dorf said...

This is a very interesting idea about which I need to think more but my initial reaction is pretty strongly negative for two reasons: (1) The President is always going to be associated with one of the two parties in Congress, so he really can't be a neutral referee (like a judge ordering striking workers back to work or ending a lockout so that labor negotiations can continue); and (2) I do think that it waters down our "brand" for us to endorse a view that both lacks a logical stopping point (thus bringing it very close to the Eric Posner "anything goes in a crisis" view) and allows that the President may break the law when he has a plainly constitutional, albeit painful option.

Paul Scott said...

From a practical standpoint, I'll also suggest this works - in pretty much all cases - to the advantage of Republicans.

Except in those cases where the chief executive makes a massive political mistake and failure to read the desires of the other side, continuing current funding levels is almost always closer to what Repulicans will want than what Democrats will want.

Yes, this reduces the short term harm to the Country. That harm is not trivial, but it is short term.

Politically, shutdowns hurt Republicans (mostly because the reasons they have chosen to shut down the Government have been to exclusively benefit the 0.1%).

I think it is at least possible that establishing a permanent pro-Republican/pro-austerity mechanism does more long-term harm to our Country than the harms done by these temporary shutdowns.

Neil H. Buchanan said...

Both of the comments above raise important points with which I agree (either completely, or almost completely). I do think that the slipperiness of the Wilentz-to-Posner-to-Yoo argument is scary, as I said in the post. However, I think this is still worth exploring at least a bit further, and I'll plan to do so in one of my posts next week.

Paul.K said...

I do think that it waters down our "brand" for us to endorse a view that both lacks a logical stopping point (thus bringing it very close to the Eric Posner "anything goes in a crisis" view) and allows that the President may break the law when he has a plainly constitutional, albeit painful option. Fifa 14 Coins
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