Tuesday, February 17, 2015

Mining Today's Silver Lining For Use Tomorrow: An Application to the Debt Ceiling

-- Posted by Neil H. Buchanan

In his Dorf on Law post this morning, "Is There a Silver Lining in Judge Hanen's Injunction Against the Obama Immigration Policy?" Professor Dorf examined yesterday's headline-making ruling from a U.S. District Court in Texas, which enjoined the Obama Administration's program that would effectively remove the threat of deportation for several million undocumented immigrants.  The post made the point that the judge who issued the ruling had very reluctantly endorsed some "liberal" legal doctrines.  The possible silver lining in the ruling, according to Professor Dorf, is that "the principles of reviewability of agency inaction articulated by Judge Hanen's opinion are, on the whole, commendable."

As the title of this post suggests, I agree with Professor Dorf that there is a silver lining in yesterday's ruling.  For me, the interesting question is in thinking about how the principles reinforced by the ruling might play out later this year, when the political system will again be brought to a halt by a cluster of fiscal deadlines.  First, although the debt ceiling will officially reawaken on March 15, the "drop-dead date" (on which the government would face the stark choice of defaulting on its obligations, issuing debt in excess of the statutory ceiling, or collecting additional tax revenues) now looks like it will not hit until late September.  (This is a significant change from the April drop-dead-date guesstimate on which I based one of my Dorf on Law posts last Fall.  Even so, the underlying analysis in that post is not affected by the updated forecast.)

In addition to the possible catastrophe that would be caused by a Republican decision to use the debt ceiling to hold the economy hostage once again, September 30 is also the end of the 2015 fiscal year.  That means that we could potentially have another replay of the 2013 government shutdown, in which the debt ceiling also played a supporting role.  And to add one more ugly piece to the puzzle, the deep and unprincipled spending cuts required by the "sequester" are set to return in full force after September 30 as well.

How might the analysis in yesterday's district court ruling possibly be relevant to all of that?  Professor Dorf points out in his post that "the principles of reviewability of agency inaction articulated by Judge Hanen's opinion are, on the whole, commendable.  Other things being equal, progressives have more to fear from unilateral presidential decisions not to enforce federal law than do conservatives because, other things being equal, progressives want the government to act, while conservatives don't."  While ultimately noting that this is all "pretty thin," Professor Dorf also notes that yesterday's "decision will at least provide some rhetorical ammunition for a future liberal Supreme Court to invalidate a future conservative president's decision not to enforce the ACA, the capital gains tax, or the Clean Air Act."

All of which had me thinking about the constitutional challenge that would be presented by a debt ceiling crisis.  Although Professor Dorf and I are comfortable that our writings on the issue cover the territory in terms of the legal arguments, it is always heartening to see legal writings that support our position, even indirectly.  Our position on the debt ceiling is that Presidents do not have the legal option to choose not to disburse appropriated spending.  We invoke the Impoundment Control Act of 1974, the Line-Item Veto case, and other cases and doctrines to support the idea that a President cannot simply choose on policy grounds not to execute properly enacted spending laws.

Yesterday's opinion, again, is not directly relevant to any of that, because the key issue in the immigration case was whether agency inaction is reviewable.  By contrast, the Buchanan-Dorf analysis on the debt ceiling has always been based on the fact that a President has no "inaction" option.  If he faces a trilemma, he must make choices to enforce (at most) two of the three laws in question (spending, taxing, borrowing).  Saying that he is simply going to honor the debt ceiling by failing to pay bills as they come due, and thus that he is not making a choice or taking an action, entirely misunderstands the nature of executive action.

Even so, the underlying political dispute regarding the debt ceiling has always been, at its core, based on a disagreement between liberals and conservatives over government action.  The radical conservative ideology that has come to dominate the Republican Party is anti-government in the extreme, which is why they decided to use the debt ceiling to try to extract further spending cuts from the President.  As a political matter, the idea was to win as many spending cuts as possible during the normal budgeting process, and then to win more cuts via a debt-ceiling hostage crisis.  In that sense, there is a liberal valence to the idea that the debt ceiling must not be allowed to be misused to produce even more spending cuts.

As we have often emphasized, however, our constitutional analysis has always been either nonpartisan or bipartisan.  For example, we have argued (as in my blog posts here and here) that Republicans should be afraid of transferring spending powers to the President, especially a President whom they so clearly despise.  We frequently note that one can believe that government spending and debt are the work of the devil, yet still agree with us that the Constitution makes it impossible to use the debt ceiling as a tool of exorcism.

Even so, we learned from the first sequester crisis that the majority of current Republicans will go along with any means to cut government spending, even if it means threatening financial and economic ruin in order to extract further conservative-friendly spending concessions from the President (and even if it means allowing defense spending to be cut, too).  At the very least, having a conservative federal judge say that the President does not have the power to change legislation will reinforce the idea that Presidents must obey the laws that have been enacted.  When laws conflict, "not acting" by not spending is thus even more obviously not a sensible way to frame the issue.

If the drop-dead date for the debt ceiling arrives, the President will have to choose which law to set aside, and the debt ceiling statute is the one that he can ignore while "committing the least inaction," as it were.  That is a very backward way of describing the issue, but it does ultimately get to the same point that Professor Dorf and I first made several years ago, which is that a key separation-of-powers principle must be for the President to make decisions that involve the "least legislative" actions on his part.

Again, yesterday's decision is hardly a game changer.  But to quote Professor Dorf's post yet again: "[T]he ability to cite favorable precedent with the opposite ideological valence has some value in politics."