Thursday, February 06, 2014

Elegant Arguments versus Messy Reality

-- Posted by Neil H. Buchanan

Tomorrow marks the official re-return of the debt ceiling.  It was put to sleep on October 17, at the end of the political standoff that more famously included the government shutdown, with a requirement that it come back to life on the completely arbitrary date of February 7.  Like the previous version of this maneuver last year (when the ceiling was put to sleep on February 4 and revived on May 19), the ceiling will be increased to whatever the debt happens to be tomorrow, at which point the clock starts to tick on the incredibly meaningless "extraordinary measures" that buy extra time before the real drop-dead date.

There is an eerie calm around the debt ceiling's return.  In part, this is a matter of pure fatigue mixed with boy-who-cried-wolf syndrome.  Even though Treasury Secretary Jacob Lew recently announced that the window before default is much shorter this time than in 2013, everyone seems to believe that the ceiling will be adjusted without much fuss this time.  If that turns out to be wrong, as Bruce Bartlett points out, the consequences will be especially bad, because people (including financial market players) are no longer preparing themselves for the worst.  If there really is a wolf this time, the villagers will suffer.

Next week, I plan to write a Verdict column about why the debt ceiling drama is not likely to go away, even if this month does go smoothly.  In my new Verdict column today, I describe the arguments in the new article that Professor Dorf and I co-authored, and which I summarized here on Dorf on Law last Wednesday.  Here, I will comment on one aspect of the new article that I did not include in my summary last week.  That particular issue, and the way we chose to deal with it, provides an interesting contrast between academic argumentation and political discussion.

With varying degrees of exasperation and amusement, Professor Dorf and I have commented periodically on the lack of any real engagement with our arguments in the debate over the debt ceiling.  Most of the opposition has been little more than what I have described as "drive-by snark," with a small number of law professors making irrelevant comments to reporters, or simply making political and economic predictions based on neither evidence nor any apparent expertise.

As Professor Dorf has noted, we have received extremely thoughtful and useful feedback from the readers of this blog.  We have not, however, seen any of the people who publicly dismiss our arguments make anything resembling an argument that passes the laugh test.  This has left us trying to imagine what a good argument against our position might actually look like.  We have tried mightily to avoid setting up straw men, and instead have tried to ask how a serious scholar might differ with us.

To a large degree, therefore, our work has been an attempt to imagine what a principled opponent would argue.  Our newest article, in particular, attempts to answer just such a question: If someone could come up with an argument that refuted (or, at least, cast meaningful doubt) on our "least unconstitutional option" analysis based on the now-all-too-familiar trilemma, would that change the analysis to support the President's insistence that the debt ceiling trumps the appropriations laws (that is, his repeated claims that "either the debt ceiling is increased, or we will default")?

Our conclusion, that defaulting is simply a different way of exceeding the debt ceiling (avoidable only through outright repudiation), closes off the possibility that defaulting could somehow be better than issuing Treasury bonds to pay all of the bills as they come due.  If we have not been wrong all along, then the President's position is simply unconstitutional in more then one logically independent way.

On a sub-issue in the new paper, we also tried to give the benefit of the doubt to a hypothetical opponent.  One of the arguments that we have tried to defeat, after seeing it come up in occasional newspaper quotations from law professors, is that the President is somehow not constitutionally required to obey the appropriation laws.  We have talked about the Nixonian impoundment crisis, the Line-Item Veto case, and so on, all to demonstrate that the President generally does not have the power to cancel or alter (up or down) the spending that Congress appropriates.

Thinking back on the early-stage debate in summer 2011, which initially focused on the Fourteenth Amendment, we recently imagined an opponent saying something like this: If Buchanan and Dorf are right that Artile I, Section 8 prohibits the President from changing Congress's appropriations decisions, then why would the Reconstruction-era Congress need to pass Section 4 of the Fourteenth amendment (the Public Debt Clause), which says that "[t]he validity of the public debt of the United States ... shall not be questioned"?

We do not believe that Section 4 is correctly read only as a prohibition on debt repudiation, but what if we are wrong?  If payments on the public debt are merely a subset of the appropriations laws that the President is required to execute, then Section 4 would be surplusage.  He is already required not to repudiate (or even delay payment on) anything (formal "debt" or other obligations), so what extra purpose would Section 4 serve?

Our answer in the article is that the Public Debt Clause creates a limitation on Congress, not the President.  That is, the Reconstruction-era Congress might have been worried that future Congresses (including representatives from the reunited states of the former Confederacy) might try to default on the Union's Civil War debts.  Even though Article I, Section 8 prevents the President from doing so, it would not prevent Congress from doing so.  Thus, we respond to our hypothetical critic by saying that the Public Debt Clause does something that the original Constitution did not.

We are happy with that argument, and I certainly think that it fits nicely with the general separation-of-powers concerns that have driven all of our writing on the debt ceiling.  Even so, I wonder how accurate it is to imagine that the post-Civil War Congress was thinking in those terms.  It is possible, I think, that they viewed repudiation of debt as already being prohibited by the Constitution, but they felt that surplusage would be a good thing under the circumstances.  "We just fought a war, and now we're going to say that we really, really mean to reaffirm the Constitution's prohibition on repudiation.  We repeat: We mean it!"

This is, of course, a difficult argument to make in the context of legal scholarship.  The argument in our article is elegant (in the scholarly sense), and it cleanly avoids the possibility of Section 4 being surplusage.  That means that we do not have to get into the messiness of figuring out whether Congress post-1865 was worried about the anti-surplusage canon, and so on.  If I had to bet, however, I would imagine that any actual member of Congress back then would have been willing to pass duplicative amendments, just to make sure that there was no ambiguity.

This all assumes that my hypothetical members of Congress back then otherwise agreed with our detractors' claim that the Public Debt Clause was only about repudiation.  Even setting that aside, however, I do find it interesting that it is sometimes better from a scholarly standpoint to ignore the most likely reality, in order to tell a story that is "tighter."  Our doing so here led to an intellectually satisfying argument.  I simply doubt that it should even have been necessary to cover that possibility.  But it was fun.

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