-- Posted by Neil H. Buchanan
As I noted in my Dorf on Law post this past Friday, Professor Dorf and I have very recently completed drafting a new law review article, again offering a constitutional analysis of the federal debt ceiling. The article, Borrowing By Any Other Name: Why Presidential "Spending Cuts" Would Still Exceed The Debt Ceiling, is now up on SSRN (here). We are very happy that it will soon be published in the online Sidebar version of Columbia Law Review, which also published our other three debt ceiling-related articles (here, here, and here).
In this post, I will summarize the main points of the new article, Then, I will offer two additional observations related to the arguments that we make there. I suspect that Professor Dorf will weigh in as well with further thoughts, perhaps as early as tomorrow (although we have not conferred about that).
In last Friday's post, I noted that the new article is "non-'trilemma'-related." Even occasional readers of Dorf on Law, or of our columns on Verdict (see especially our joint column from last January, here) might reasonably feel bombarded by our favorite way of framing the impossible problem that would face a President, if Congress were to refuse to increase the debt ceiling as needed to accommodate the arithmetic difference between Congress's spending and taxing laws. Because any decision that the President made under such circumstances would usurp a power of Congress (borrowing, spending, or taxing), he would violate the Constitution no matter what he chose to do.
Our central argument has been that the least-bad choice would be to engage in unconstitutional borrowing, rather than unconstitutional taxing or an unconstitutional refusal to pay in full for Congress's spending decisions (that is, to default on the government's obligations). But in our new article, we consider the possibility (so far, an entirely hypothetical one) that someone could articulate different criteria, or weigh our criteria differently, such that they could reasonably disagree with us and say that the President must (as Obama and his advisors resolutely insist) default on the nation's bills. Alternatively, what if someone could simply convince us that defaulting was not a violation of the spending power at all? Would either of those possibilities mean that there was no constitutional violation?
In a word, no. We begin by developing a point that I sketched out in a Dorf on Law post this past October: "It's Two ... Two ... Two Constitutional Violations in One!" It turns out that our stipulation that defaulting would at least avoid usurping Congress's borrowing power (even while usurping the spending power) was simply wrong. If the President were to decide to leave any obligations unpaid (either by "prioritizing" various obligations, or simply allowing default to befall obligees in the order in which their payments from the government came due), he would still be borrowing, because he would surely be saying "not yet" when he regretfully announced the defaults. Whether or not the President promised also to pay interest would be irrelevant, because he would be turning an obligation to make payments that had come due (and thus had not yet ripened into debts before their due date) into a "forced loan" from the unlucky obligees.
In my earlier post, I had framed this purely as a statutory matter, pointing out that the language of the debt ceiling law clearly covered "obligations" that went beyond the traditional Treasury securities that are the normal method by which the federal government borrows money from (willing) lenders. In our new article, however, we point out that the constitutional language is even more damning for the White House's claim that it must default. Only Congress has the constitutional authority "to borrow Money on the credit of the United States." That the borrowing in this case would take the form, "Oh, sorry, we're out of cash for now, so we'll pay you when we can," is morally worse than voluntary borrowing, and just as unconstitutional.
But what if the President explicitly repudiated the new debt? He would have to first default, and then acknowledge that the new debt must be repudiated, but we do not quibble about the nano-seconds between creating the new debt and then extinguishing it. We agree that this would save the President from committing an unconstitutional usurpation of Congress's borrowing power. The problem is that this would violate -- Are you ready? -- Section 4 of the Fourteenth Amendment. Some readers might recall that we (and a few others) have, independently from our trilemma argument, concluded that the "public debt clause" in Section 4 prevents the President from obeying the debt ceiling, because it would cause people to "question" the "validity" of the public debt. One response to that argument has been that only an outright repudiation rises to the level of a constitutional violation, because that is what it supposedly means to question the debt's validity.
Even by that most cramped reading of the relevant language, however, the President avoids violating Article I, Section 8, only by violating Amendment XIV, Section 4. We also note that, if the President defaults but claims that there is nothing to repudiate, then he would simply have engaged in an unconstitutional "taking" without just compensation -- because the only just compensation for the unpaid bills would be the amount of the obligation that had not been paid in the first place.
There is more in the article, of course, but this is the gist of it: If the President refuses to float new bonds to cover the shortfall between Congress's spending and taxing laws, then he either violates the Constitution by borrowing on the credit of the United States, or he violates the Constitution in some other way -- and, by the way, puts himself in even hotter political waters. (Would you like to be the one who explains why obligees will never be paid?)
We, of course, continue to believe that our original analysis is correct. If we are right, then defaulting amounts to the "two constitutional violations in one," about which I wrote in October 2013. If we are wrong, however, then the President would still violate the Constitution -- and he would do so by borrowing more money, which is exactly what he insists he cannot do.
Two additional thoughts are worth mentioning here, I think. First, back when I presented a draft of our first article to the Tax Policy Colloquium at Duke Law School, I argued pretty unambiguously that the debt ceiling law serves no purpose at all, because debt is the consequence of Congress's taxing and spending decisions. Both of the colloquium's professors (Rich Schmalbeck and Larry Zelenak) posed variations on the following question: Isn't it possible that the debt ceiling is a kind of fail-safe, given that it is not possible to know, ex ante, exactly how much money will ultimately be borrowed under any given set of spending and taxing laws? Given the existence of commitments tied to contingent events, for example, Congress's spending laws could end up obligating the country to pay much more than Congress would have wanted.
In essence, this argument turns the debt ceiling law into what might playfully be called the "alternative maximum borrowing" (AMB) law, a law that undoes what Congress has otherwise purported to do, if circumstances become unexpectedly extreme. (Readers who are not tax geeks might not recognize the punny reference to the Alternative Minimum Tax, but believe me, it's hilarious.)
My response at the time to the Schmalbeck-Zelenak query, which I still think is correct, was that Congress has the responsibility to write its laws in a way that covers such contingencies. In our third article, in fact, Professor Dorf and I discussed what amounted to the same argument, showing that the debt ceiling law would, if read as a fail-safe law, be an unconstitutionally unguided delegation of authority to the President.
In light of our new article, I think the answer to the AMB argument is even clearer. If Congress thinks that passing a debt ceiling law will actually limit debt, then it is sadly mistaken. If it truly wants to install pressure-release valves into its laws, then it retains the power to do so explicitly. But obligating the government to pay certain bills, and then expecting the President not to pay some of those bills if Congress has not paid enough attention to contingencies, is not a way to avoid having the President borrow more money than the debt ceiling allows.
My second thought about our new article is that the framing of our argument might plausibly reinforce the damaging idea that debt is always bad. One easy (and accurate) way to summarize our argument, after all, is something like this: "The President cannot avoid violating the debt ceiling by defaulting, because Congress's decisions already required that the spending be paid for. Only Congress can prevent the need for more borrowing."
Although nothing in that summary carries a necessary condemnation of federal borrowing, I fear that it plays into the idea that "Congress is just a bunch of spendthrifts, who cannot stop themselves from putting us all in hock." Indeed, Tea Party extremist Rep. Raul Labrador of Idaho actually got this much right a few days ago, when he reportedly said: "The time to fight for spending cuts is when you’re talking about
spending, not at debt ceiling time. So when people caved on the budget
and caved on the [Ryan-Murray] agreement, it’s really hard for them to
come back and say, ‘We don’t want to increase the debt ceiling’ when
they’ve already voted for something that increases the debt.”