-- 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.