Friday, March 14, 2014

The Latest Buchanan-Dorf Article Is Now Published: Is It Already a Dead Letter?

-- Posted by Neil H. Buchanan

How long will the Tea Party wait for satisfaction?

There was no political brinksmanship regarding the debt ceiling last month, with the House Republican leadership allowing a vote which resulted in the suspension of the debt ceiling until next March 15.  Does that mean that Professor Dorf and I have misspent almost three years of our middle age, devoting large chunks of our time to writing legal analyses about an issue that was ultimately dealt with -- however haphazardly -- by the political system?

Hardly.  There is plenty of legal scholarship written in anticipation of possible legal problems that have not yet come to pass.  For example, good work has been done (see, e.g., here) on proposed balanced-budget amendments, even though Congress has not (yet) passed such an amendment.  (Self-interest alert: I will probably write an article about balanced-budget amendments sometime soon.)  Given that there is still a debt ceiling statute, and Republicans could go back to their hostage-taking strategy at any time, it is important to have a body of work out there that could (unfortunately) become relevant.

In any case, the fourth Buchanan-Dorf Columbia Law Review piece is now finalized and available here.  I summarized the arguments in that piece in a Dorf on Law post back in January, describing how even a non-trilemma-based analysis leads to the conclusion that the debt ceiling statute is unconstitutional.  The short version of our argument is that, even if the President defaults on some obligations as they come due, in an effort not to exceed the debt ceiling, we will in fact exceed the debt ceiling, because we will have forced the people to whom we were supposed to pay money to wait to receive their funds.  That is, we will have forced them to lend money to the government.

Note that I say "we," as in the American people, rather than "he," as in the President, because in fact it is Congress that will have exceeded the debt ceiling by passing spending and taxing laws that require either issuing Treasury debt or forcing obligees to lend money to the government.  Nothing the President can do would prevent the government from exceeding the debt ceiling, given Congress's actions.

Because of the agreement to suspend the debt ceiling through March 15, 2015, this issue will not be politically relevant for at least another year.  The question is whether the Republicans will, in fact, try at that point again to extort policy concessions from Democrats by threatening to force the government into default.  Professor Dorf has expressed his educated guess that "[r]eports of the debt ceiling's demise are, alas, exaggerated."  Even so, some pretty savvy political observers disagree, such as Greg Sargent of the Washington Post, who argued last month that "GOP debt limit extortion is dead."

Sargent could be right.  It could be true that the establishment Republicans have decided that the Tea Party cost it too much credibility in last Fall's government shutdown debacle, and that playing with the debt ceiling has become unacceptable.  Indeed, three years ago I asked whether the Republican money men were regretting enabling the inmates to take over the asylum.  It is certainly possible that the last three years have broken the fever on the debt ceiling.

Like Professor Dorf, however, I doubt it.  For one thing, there is no sign that even the supposedly centrist players ever really understood what was going on.  For example, in the lead-up to last month's non-drama, the Center for a Responsible Federal Budget -- a deficit-scold organization that is a solid part of the Washington establishment -- issued a Q&A about the debt ceiling that continued to conflate the debt ceiling with the debt itself, using the opportunity to say that the debt ceiling must be increased, BUT that increases in the debt ceiling often have been (and should be) combined with spending cuts.  (They misunderstand the history on that point, but that is irrelevant for current purposes.)

In other words, although they tut-tutted and did not endorse actually failing to increase the debt ceiling, they essentially approved of using the debt ceiling to extract more spending cuts from Democrats.  This must mean that they liked the 2011 capitulation by the White House that led to so much subsequent harm.  So, without actually calling for extreme tactics, the "responsible" budget people are on the record as saying that the White House's call for "clean" debt ceiling increases is not the way to go.

Meanwhile, establishment Republicans are hardly against using the debt ceiling to extract concessions.  Larry Lindsey, who served in the White House under the elder President Bush, and who has been active in high-level Republican circles for decades, recently described the debt ceiling as an "inelegant" but useful way to attack "out of control entitlements."  These are hardly the words of someone who is trying to steer the base away from reviving their debt ceiling strategy.

Even so, having another crisis in the future still requires that Republicans do what Sargent says they will not do, which is to make the affirmative strategic choice to use the debt ceiling as a political weapon once again.  Why would they do that?  As Professor Dorf pointed out, the political numbers are disturbing.  House Speaker John Boehner was barely able to find the minimum number of Republicans necessary to join Democrats in passing the most recent suspension bill.  Even though Boehner received credit from his lieutenants, he did not receive their support.  A Washington Post article quoted Republican House member Tom Cole of Oklahoma, a member of the House Republican leadership: "'I think he wants to get the issue taken care of.  John Boehner is the adult in the room.' (Cole voted no on the debt limit increase.)"  Nice use of a parenthetical!  Maybe Cole considered this a "free" vote, but this is not a promising sign.

More to the point, the message that Boehner sent to the Tea Party in February was not, "Shut up and move on.  We're not doing this debt ceiling nonsense anymore."  Instead, that article reported, "[a]head of the midterm elections, Boehner argued that now is not the time to get drawn into weeks of dramatic headlines and fiscal battles with President Obama. 'We’re not going to make ourselves the story,' he said."

In short, the message was most definitely not, "We're not doing this anymore."  It was, "Now is not the time, because we have mid-terms to win."  The message that the Tea Party received, therefore, was that the debt ceiling issue cannot be used in even-numbered years.  When the debt ceiling wakes up again next Spring, with a few weeks or months of extraordinary measures then carrying the next possible drop-dead date into April or May, the ultra-extremist majority in the House will know that that is their moment, their only real chance to use the debt ceiling.  If they allow another suspension of the debt ceiling for several months or another year, they will then be told to shut up again, lest they blow the party's chances in 2016.

It is hard to imagine that Tea Partiers will be willing to wait until 2017, at the earliest.  Patience has not been their hallmark.  Moreover, they expect to win the presidency in 2016, so they would not be in a position to use the debt ceiling as a weapon in 2017.  And perhaps most importantly, 2015 is their last chance to use the debt ceiling specifically against Barack Obama.  Given that the debt ceiling is still an impeachment trap, it is hard to imagine them not wanting to set the trap once again, to have their final go at the Kenyan/commie/muslim/fascist/mom-jeans-wearing imposter.

But this is all merely a series of educated guesses that Professor Dorf and I have worked through, based on our interpretation of recent history.  Is there anything to back this up?  Indeed, shortly after our first conversation about these very issues, The Hill ran a piece that began: "The White House might have gotten a clean debt-ceiling increase this time, but things likely won't be as easy next time around."  The money quote is from a Republican strategist: "You got the one pass. But if you do take control or come close, saying 'OK, after the next election' isn't going to fly with the base. The base is tired of hearing 'next election.'  The base is only going to stay patient for so long."

In short, as much as I would like to see the country spared another round of debt ceiling brinksmanship, it seems highly likely that the stars are aligning for a donnybrook next Spring.  Until then, I think we all will enjoy the opportunity to think about other things.  The end may well be nigh, but in the meantime, the orchestra can continue to play.


David Ricardo said...

The short answer with respect to whether or not the debt ceiling issue will arise in March of 2015 is “we don’t know”. The long answer is that it depends upon

1. Whether or not the Republicans take control of the Senate in 2015.
2. Whether or not Senator McConnell is re-elected, and if not who takes his place.
3. Whether or not Mr. Obama caves (again) and negotiates with the Republicans for cuts in spending and changes to health care reform in exchange for a debt ceiling increase.

Mr. Buchanan is likely correct in that it is more likely than not that there will be a debt ceiling crisis in 2015. As he says, the Republican base will demand it. But it is not a given.

What we do know is that regardless of the legal merits of the case, the Dorf-Buchanan position will not be taken by the President, not because it is not the appropriate response to his Constitutional duties but because it is a politically untenable position. And regardless of the origins of the debt ceiling law, it is not a manifestation of economic policy, it is not an expression of law, it is today and in the future a political exercise only and will ultimately have a political, not legal solution. But we will not know that political solution until early 2015.

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