Thursday, November 13, 2014

The Debt Ceiling After the Midterms, featuring Actual Engagement With the Buchanan-Dorf Arguments

-- Posted by Neil H. Buchanan

With a few races still left to be decided, the new House of Representatives in 2015 will have 244 Republicans and 186 Democrats.  Even on the assumption that the remaining five seats all end up in the Democratic camp, and even assuming that all Democrats would vote for any increase in the debt ceiling that would be needed, and even assuming that the Republican leadership would again break the so-called Hastert Rule by allowing the House to vote on something that a majority of the Republicans oppose, that would mean that the Republicans need to come up with 27 members who would vote to increase (or suspend, or repeal) the debt ceiling.  (Let us leave aside the possibility of a filibuster by Republican senators, even though a non-published analysis that I have seen from Merrill Lynch suggests that the big players in the financial markets are worried even about that.)

At the very least, this suggests that the reassuring talk from people like soon-to-be Senate Majority Leader Mitch McConnell and House Majority Leader Kevin McCarthy about "responsible" governing could soon be ground up in the gears of base-pleasing nutcasery.  As I have noted many times, this will be their last chance to "get" Obama, and it will come to a head at least 18 months before the next election.  I am not betting on a smooth resolution to the next drop-dead date on the debt ceiling.

Which brings us back to the question that Professor Dorf and I have been asking for quite some time: On what amounts to an existential issue of policy, where are the legal scholars?  In particular, where are the legal scholars who disagree with our conclusions, and who claim that the President will have no choice but to default on the nation's obligations for the first time ever, if the Republicans refuse to increase or neutralize the debt ceiling after it reawakens on March 15, 2015?  Our analysis could be wrong, of course, but if it is, no one has offered any arguments against us in a published article (or, with the one exception to which I will turn shortly, even in the form of a work in progress).

There have been some articles that reach essentially the same bottom line that we reach.  In a Dorf on Law post several weeks ago, I briefly described a recent student note in a top law review, in which the author wended his way through various arguments relating to the federal debt ceiling.  Although I found much to compliment in that piece, I did note the surprising fact that the student editors of the law review (as well as the author himself) simply failed to engage in what I always thought was standard operating procedure: a preemption check.  The note does not cite the work that Professor Dorf and I published in Columbia Law Review over the past couple of years (the central argument of which is summarized in this Verdict column).

It turns out that the failure to do preemption checks is more widespread.  A Democratic staffer on Capitol Hill recently published an article in the Harvard Journal on Legislation, but he did not cite any of our work, either.  Like the student note that I described above, however, that article has its virtues, including a nice rendition of the history of the debt ceiling.  A student note in yet another top law review cites our work in passing, in the course of agreeing with the part of our argument regarding the 14th Amendment's Public Debt clause.  (I should note that the granddaddy of the 14th Amendment articles was published as a student note in 1997 by my now-colleague Michael Abramowicz, whose prescience in anticipating this issue is eerie.)

Lest it appear that I am obsessed with being cited, let me be absolutely clear.  The point of the scholarly enterprise is supposed to be something resembling an advocacy process.  People bring forth ideas and debate them in good faith, other people contest those ideas, and knowledge advances.  In some cases, as I discussed in my Dorf on Law post earlier this week, the result actually improves public policy.  Here, however, that has not happened.

As I noted on Tuesday, however, it is no longer accurate to say that there has been no scholarly engagement that has challenged our arguments.  In a forthcoming article in Connecticut Law Review, Professor Chad DeVeaux of Concordia University School of Law carefully analyzes the issues raised by our "trilemma" analysis and reaches a different conclusion.  Although I ultimately find his argument unsatisfying, it is a serious argument, and Professor DeVeaux's writing has forced me to hone my thinking on this in a way that advances the discussion.  The disagreements that I describe below are offered in that spirit.

Professor DeVeaux builds his analysis upon the famous Youngstown Steel Seizure Case, in which Justice Jackson laid out the "three zones" of presidential power.  Professor DeVeaux's argument leads him to identify a fourth zone of power, which he says Congress would inadvertently create if it legislated a trilemma and thus gave the President no good options. As he summarizes his point in his abstract: "By commanding the president to implement particular programs, while denying him the funds necessary to pay for those endeavors, Congress tacitly afforded the president the discretion to take any of the three corrective actions suggested above" (emphasis added).

It is essential to understand that Professor DeVeaux reaches this conclusion reluctantly.  He clearly wishes that Congress would not create a trilemma, because Congress is shooting itself in the constitutional foot in doing so.  He thus clearly differs from Professor Eric Posner, who is generally so eager to expand executive power that he gleefully grabbed onto the debt ceiling analysis as an excuse to say that all bets are off.  If Congress gives the President no good options, Posner says, then the President can do whatever he wants.  (Again, this is Posner's general view about executive power, not just in the context of the debt ceiling.)  Professor DeVeaux does not engage in opportunistic pretzel logic but instead soberly asks a neutral question about whether there are limits on Presidents who face trilemmas.

But Justice Jackson's analysis does not get us to where we need to go.  The key is his claim that "only Congress itself can prevent power from slipping through its fingers."  That is unsatisfying in this context for two reasons.  First, it is vague.  It might simply mean that Congress possesses the power to guarantee that the President has no wiggle room, and if Congress gives him an excuse to take unilateral action, then Congress has no one to blame but itself.  Only it can "prevent power from slipping through its fingers," because only Congress can pass the laws in a way that avoids trilemmas.

That, however, does not mean that Justice Jackson would say that the President has no constitutional responsibilities of his own, even after Congress has blown it.  The motivating idea behind the Buchanan-Dorf analysis has always been that the separation of powers limits the President, requiring him to choose the "least unconstitutional option," which means that -- even if Congress has done a stupid thing -- the President is required to stanch the bleeding, not open more veins to allow the patient to bleed out.  Congress could (and should) have made it unnecessary for the President to decide how to act responsibly, but its failure to do so is not, even under Justice Jackson's formulation, carte blanche for executive discretionary actions.

More fundamentally, the second reason that Justice Jackson's formulation is not controlling here is that, even if Professor DeVeaux's reading of it were accurate, it has been overruled.  As Professor Dorf and I have discussed in our articles, the Line-Item Veto case (Clinton v. City of New York) stands for the proposition that Congress not only cannot accidentally give away its authority under the Constitution, but it cannot even choose to give it away.  If Justice Jackson really meant that Congress can, through inaction, alter the balance of powers among the branches of government, he was wrong (and his successors have said so).

In the end, then, Professor DeVeaux's analysis is not really wrong, but incomplete.  He provides a different way to think about what we have called the trilemma, using a major Supreme Court case to tease out some important issues.  Having concluded that Justice Jackson's analysis provides no further guidance, he stops too soon, saying only that the President would have unfettered authority to choose his course of action.  That would only be true if there were no further reasons to believe that the Constitution limits the powers of the President.  But there are.

Again, however, this is "good stuff," as the saying goes.  I learned a lot from Professor DeVeaux's paper.  Even though our ultimate conclusion is not undermined, the paper reminds us why separation of powers principles are so essential to guiding our analysis.