Tuesday, December 16, 2014

How Will Democrats Play the Impeachment Trap Game?

-- Posted by Neil H. Buchanan

Frequent readers of Dorf on Law know that Professor Dorf and I have written a long series of academic articles, Verdict columns, and blog posts about what the President would be constitutionally required to do if he is ever faced with a debt ceiling-related crisis.  As it happens, however, Republicans and Democrats alike -- most definitely including the White House -- have not adopted our approach.  As frustrating as that has been, it does have the liberating effect of allowing me to observe the political theater, knowing full well that everyone is ignoring us.  No responsibility, pure entertainment.  (Yes, the entertainment is sometimes more like a horror film, but that's still entertainment!)  It also makes it perversely interesting to speculate on what the parties might do, now that they are working within a box into which they have mistakenly placed themselves.

Since early 2013, I have been using the term "impeachment trap" to refer to the Republicans' strategy to use the debt ceiling law to force President Obama to commit an impeachable offense.  Professor Dorf and I have used the term "trilemma" to refer to the three unconstitutional choices that a President would face if the debt ceiling is ever too low to accommodate the borrowing required by the spending and taxing laws.  The constitutional authority to spend, tax, and borrow all belong to Congress, but Congress itself could make it necessary for the President to usurp at least one of those powers.

In my new Verdict column today, I turn the impeachment trap inside out, asking whether Republicans have created a trap for themselves, all but guaranteeing an impeachment drama next year -- precisely when the Republican leadership is trying to prove that they are good at something other than creating gridlock and dysfunction.  Here, I will describe why an impeachment battle seems quite possible, and then I will offer a few thoughts about how the Democrats might play this game.

The debt ceiling, which is currently suspended (for the second time, via the bizarre voodoo of Senator McConnell), will be reinstated on March 15 of next year.  Congress has just passed appropriations that run through September 30 (the end of the 2015 fiscal year), which guarantee that there will be a small deficit for the year.  Because the deficit is so small, Treasury's "extraordinary measures" could extend the drop-dead date well into the summer.  (Yes, extremely low deficits can still lead to a debt ceiling crisis, because the debt ceiling is a dollar amount, not a percentage of GDP.)

The big question, of course, is whether the Republicans will again create a to-the-last-second stare-down with President Obama over the debt ceiling.  They might choose not to.  Certainly, the party's leadership is hoping that there will be no drama next time around.  I will return to this question momentarily, but for now, we can ask what would happen if the debt ceiling is not increased.  The point of my Verdict column is that the Republicans will have made it all but impossible not to then impeach the President.

This is not merely because the President will have violated the Constitution in some way, but because he will have done so by "picking and choosing" which laws he wants to enforce.  He will have to choose one of the three prongs of the trilemma.  If he does what he says he will do (i.e., ignore Professor Dorf and me), he will have to start defaulting on the government's financial obligations.  But that is only the beginning.  Contrary to our strategy, the President's strategy (shared, again, by all the major players) then requires a daily burlesque of picking and choosing winners and losers.

Republicans have spent nearly the entire Obama presidency preparing for exactly that moment.  How could they resist the pressure to impeach the man who would be openly doing exactly what they accuse him of doing -- deciding which provisions of the law to enforce, and which to ignore?

Which brings us back to the Democrats.  It is always difficult to try to figure out what the Democrats will do, because they "never miss the opportunity to miss an opportunity" (a quote with a mysterious provenance).  And it is especially difficult to imagine them acting intelligently, because they have almost uniformly accepted the narrative that the 2014 mid-term election, which was solidly within the historical norms for such elections, was an unparalleled disaster.  Moreover, in the recent budget negotiations, they supported a bill that only funds Homeland Security for the next three months, setting up a late-winter opportunity for Republicans to make hay over "Obama's amnesty."  The Democrats seem forever hapless.

Even so, let us indulge in some speculation about what Democrats might do with regard to the debt ceiling next summer.  (Surely, nothing will happen on March 15, because everyone rightly sees that as a fake deadline.)  A large majority of Republicans has voted against all recent debt ceiling increases, and the Democrats have provided almost all of the votes to avoid disaster.  When Democrats held 200 House seats, that meant that Republican leaders only needed to find 18 Republicans to go along.  (They also needed to suspend the "Hastert Rule" to be able to vote on something that most Republicans oppose.)

In 2015, it appears that Democrats will hold about 188 seats.  Those dozen lost seats are 12 more votes that Republicans would have to round up.  But why would the Democrats play along this time?  Surely, the Republicans will be making demands for concessions from the White House, and Democrats (including House Minority Leader Pelosi) have already shown that they are unhappy with how much ground the White House has been willing to give up.

Why not force the Republicans, finally, to govern responsibly, as they claim they want to do?  That could mean, in this case, making an explicit deal: Although Democrats could withhold their votes and force almost the entire Republican caucus to vote for a debt ceiling increase, Democrats could be magnanimous and agree to provide one vote for a clean debt ceiling increase for every two votes that Republicans provide.  (Perhaps I am the only person who would note the similarity between that proposal and the "Boehner Rule," the made-up nonsensical requirement that "every dollar increase in the debt ceiling requires $2 of spending reduction.")

In order to get to 218 votes in the House, that would mean that Republicans would have to come up with 144 "yes" votes among their caucus -- a clear majority of their 247 or so members.  What if the Republicans said no?  The Democrats could then blame the ensuing default on Republicans, and then all but beg the Republicans to impeach President Obama for "picking and choosing" winners and losers.

The extra juice in this situation is that the Republicans have conditioned their base to become outraged by anything that looks like executive overreach.  If they are willing to go to the mattresses over Obama's prioritization of which illegal immigrants will be prosecuted, imagine the outrage when he starts choosing to default on obligations in Red states!

The larger point is that the Republicans have spent years trying to trap President Obama into an impeachable offense.  The Democrats can now decide whether they want to help Republicans avoid being caught in their own trap.


Joe said...

Some Dems would be game to play them -- it's not like a lot of them want the Republicans to actually legislate. Who would trust what the current bunch (led by McConnell, a dark mark on republican values, in the Senate) would do in that department?

I sort of think impeachment is an important check, so am not really a fan of the maneuver. We saw this after the Clinton Impeachment -- many thought the thing was abused there, so any impeachment of an executive official for a divisive reason (such as lying to get us into Iraq or something) was seen as a bad idea. As if that and the Clinton impeachment was about the same thing.

We see this with Eric Posner talking about how torture prosecutions would reasonably been seen as prosecuting policy differences. Anyway, I'll believe it when the Rs actually don't just play a game of chicken but actually impeach when I see it.

KV3 said...

"Democrats could . . . agree to provide one vote for a clean debt ceiling increase for every two votes that Republicans provide. . . . The Democrats could then blame the ensuing default on Republicans . . . ."

I don't see how this would work, politically. How exactly could Democrats blame Republicans for failing to pass something if they (the Dems) take the position that they will provide only 1 vote for every 2 Republican votes? The Republican leadership could correctly point out that, even if the bill fails, Republicans at least provided at least twice the number of votes for it than did the Dems.

I think the press and the public would find it difficult to blame a bill's failure on Republicans in this scenario. At a minimum, it would be highly debatable whether Dems would be to blame.

And who will be the spokesperson for the Dems' criticism of the Republicans for failing to pass the bill that most Democrats didn't vote for either? Presumably it would have to be one of the small minority of Democrats who actually voted for it, but I still don't see how that helps the Democrats overall.

Neil H. Buchanan said...

I see KV3's point, although I think it would be relatively easy to say, "Why should we (Democrats) pass a bill that less than half of a Republicans will vote for, when all the bill does is to prevent default?" But let's say I'm wrong about whether the 2-for-1 thing would fly. How about this: "We'll provide half of our votes, plus one. Now, all you have to do is get half of yours to vote the right way." My larger point is that the Democrats could stop allowing Republicans to posture on the debt ceiling.

KV3 said...

"My larger point is that the Democrats could stop allowing Republicans to posture on the debt ceiling."

I see. But I guess my larger point is that it would not in fact be so easy to do this.

E.g., even under your alternative proposal (with Dems saying "We'll provide half of our votes, plus one"), the Dems would look like they are playing games on a serious matter. Elected leaders who say things like "We'll provide half of our votes, plus one" when they know that it's a crucial, *must-pass* bill could easily end up looking like they prioritize political theater and gotcha-games over the nation's well-being. We could go back and forth on various proposals, but my larger point is that it will always be politically risky--not to mention dangerous for the country--to engage in any sort of political numbers or vote-limit game (and it's definitely a game) in order to force members of the other party to do what you want. So it's not so easy for the Dems to deal with this, no matter how unreasonable the Repubs may be. The Dems may end up looking more reasonable in the end, but there's a dangerous element of chance to it all.

Neil H. Buchanan said...

Thanks to Joe and KV3's thought-provoking comments, I'm now convinced that this subject is worth another post. I'll write something further on Friday morning.

KV3 said...

Excellent - looking forward to it!

Justin said...

Not to mention that Democrats also have a responsibility to their constituents not to risk a default. At some point, you are elected to govern, not to get elected again. That Republicans ignore this at the peril of their country does not mean that Democrats should do the same.

And a scheme like this will start to make Republicans think that they can "win" a default, the way Joshua thought that he could win a game of thermonuclear war. Maybe they're wrong, and Democrats will "win" a default, but the economic damage that ensues will mean that winning is just picking up the wreckage.

Joe said...

Yes, Democrats continue to act like adults here, even when some are upset that this leads to the other side getting some sort of win.

It's a hard job figuring out how to govern when one side simply doesn't seem serious about it. There might be better ways to do it than the current Democrat bunch does, but I respect what they are up against.

Neil H. Buchanan said...

Thanks again to everyone for their thought-provoking comments. I still plan to write a follow-up post, but it turns out that I will publish it on Monday (12/22), not today (Friday 12/19). Stay tuned!

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