Tuesday, October 12, 2021

Incompatible Commands in Law and in Everyday Life

 by Michael C. Dorf

A recent NY Times column by Peter Coy quotes Professor Buchanan and me in a dispute over the nature of money with Professor Rohan Grey (subsequently joined by Paul Krugman). Buchanan and I worry that if the government were to mint trillion-dollar platinum coins as a gimmick to circumvent the debt ceiling, that could undermine popular faith in money, which depends for its value on social acceptance. Grey and Krugman respond that money has value because the government requires the payment of taxes and accepts money, specifically dollars, as payment. Buchanan and I in turn respond that this fact does not suffice to make money perform its function in private transactions, as evidence from countries experiencing high inflation shows. Moreover, we have pointed out in numerous fora, minting trillion-dollar platinum coins should be at best a last resort, given that there are better ways for the President to handle a debt-ceiling crisis.

My Verdict column tomorrow will address a point of partial agreement between Professor Grey and me. As I told Mr. Coy--and as I'll expand upon in the column--we should be hesitant to endorse any view that says the People can't handle the truth. The column will explore the circumstances in which it nonetheless might make sense to promote "noble lies."

In this essay I shall put aside what are, at the end of the day, relatively minor differences between Buchanan/Dorf and Grey/Krugman over exactly how the President could best respond to congressional failure to raise the debt ceiling. After all, we agree on the more fundamental points: (1) Congress should repeal the debt ceiling; (2) if it doesn't, it should at least raise or suspend it; (3) if Republicans refuse to cooperate in the next round of debt-ceiling brinksmanship, Democrats should go it alone; and (4) if Democrats fail to do that because of either brinksmanship of their own or because of the timidity of Senators Manchin and/or Sinema, then President Biden should use whatever tools will best allow him to mitigate the damage by borrowing what is needed to make up the shortfall between authorized spending and available revenues.

Given that agreement, I want to ask whether a failure to raise, suspend, or repeal the debt ceiling really would present the President with what Professor Buchanan and I have sometimes called a "trilemma" of only unconstitutional options in which he must choose the least unconstitutional (and thus least bad) option. That inquiry will, in turn, provide an opportunity to think about incompatible commands in other contexts.

One relatively simple way out of a debt ceiling trilemma (in which the President must engage in either unauthorized taxation, unauthorized spending cuts, or unauthorized borrowing) would be to try to solve the problem as a matter of statutory interpretation. If Congress passes a law in 2020 that says "do X" but then passes another law in 2021 that says "don't do Y," where Y includes X, we would not ordinarily say that Congress has demanded the impossible of "do X and also don't do X." Rather, we would say that the 2021 law impliedly repealed the 2020 law. As a general matter, courts try to construe statutes to avoid repeals by implication, but sometimes such harmonizing constructions are unavailable. In those circumstances, the general rule is that if there is an unavoidable conflict the later-in-time statute takes precedence.

Assuming harmonization is impossible, the next step would be to determine whether a more recent enactment tacitly repeals an earlier one. Here the most recent enactment is the bill, passed by the Senate last week and scheduled for a vote in the House at any moment, temporarily raising the debt ceiling. It adjusts the debt ceiling, which itself is phrased not simply as an authorization of borrowing up to a specific amount but as a limit on debt. One could, I suppose, read the debt ceiling as tacitly repealing spending that would require borrowing in excess of the ceiling. There are multiple interconnected  difficulties with doing so, however.

First, the debt ceiling provision and its amendment say nothing at all about spending. It's not as though there were a statute defining classes of homicide followed by another statute defining different classes of homicide and so one logically reads the second homicide statute as tacitly repealing part of the first one. That said, if we follow the last-in-time rule, we might say that Congress has chosen to prioritize the debt ceiling over spending.

But that calls to mind a second difficulty. Prior to this latest deal to temporarily increase the debt ceiling, the most recent action was spending that would eventually require breaching the pre-existing debt ceiling. If we follow the last-in-time rule, then when Congress authorized the spending, it tacitly repealed the debt ceiling. But then, when Congress increased the debt ceiling it tacitly resurrected the debt ceiling and perversely, cancelled some of the very spending the increase was meant to facilitate.

Third, and independently, saying that the debt ceiling increase by a finite amount tacitly repealed spending doesn't tell us which spending was repealed. And simply delegating the power to the President to cut whatever spending he wishes to cut would require the conclusion that the debt ceiling increase  not only repealed (unspecified) spending but also partially repealed the Impoundment Control Act, which generally requires the President to spend appropriated funds. And we haven't even gotten to constitutional problems with the breadth of the delegation by tacit repeal and the potentially unconstitutional line item veto.

The foregoing complexities lead to the conclusion that Congress did not tacitly repeal anything (either in the spending measures or the debt ceiling increase) but simply issued incompatible commands. Should Congress fail to raise the debt ceiling by the December deadline, it will be as if Congress in a single bill commanded "do X but also don't do X." There is no way to comply.

What follows? In our work on the debt ceiling, Professor Buchanan and I have argued that if Congress presents the President with circumstances in which anything he does, including nothing, would be unconstitutional, the President's constitutional obligations do not simply vanish. Rather, he is obligated to minimize the constitutional violation and the harm to the country. For reasons I won't rehash now, we think that in a debt ceiling crisis, the constitutional-violation-minimizing and harm-minimizing course is to issue debt.

An alternative approach would be to say that if the lawmaker imposes inconsistent demands, the object of the law--whether it's the President, the Secretary of the Treasury, or private actors--is under no command at all. We have argued that this is a dangerous approach, as applied to the President. It's also worth noting that circumstances of this sort arise with greater frequency than one might realize.

Suppose that Alex signs a contract requiring the sale of some unique property (a painting by a dead artist, let's say) to Barbara and another contract requiring the sale of the exact same property to Clara. Is Alex excused from both contracts on the ground that he can't comply with them simultaneously? Hardly. Alex will sell to one and pay damages for breach to the other. Or perhaps Alex will negotiate his way out of one of the contracts by paying the seller a premium. In any event, the important point is that inconsistent obligations don't mean no obligation.

Here's another example. Suppose Sue is an Instacart shopper. Harvey, a homebound customer, has instructed "make sure to buy every item on the list and also make sure that the total bill doesn't come to more than $100." When Sue goes to check out, the total is $140. She calculates that if she makes some substitutions, she can reduce the bill to $120 but there's no way she can fulfill both commands. If she can't reach Harvey while she's at the store, what should Sue do?

In the last example I gave of a perplexing Instacart order, the shopper's difficulty was figuring out what the customer really wanted. Here that's not the problem. Here Sue knows what the customer really wants. The problem is that what he really wants is impossible. Nonetheless, that doesn't mean all bets are off. Sue shouldn't buy nothing. Nor should she buy items that aren't on the list. Sue's best options appear to be either get all the items on the list and violate the $100 cap or get some subset of the items totaling no more than $100. The latter course is especially difficult, however, given that Harvey hasn't specified which items he values more than others. And because Harvey is a stranger to Sue, she has no good way of prioritizing. (I'm assuming that nothing on the list is obviously higher priority, like "pay for and pick up my insulin.")

My core point here is that when faced with truly incompatible commands, if it's impossible to infer from those commands a prioritization scheme, some element of judgment about the good is required. Perhaps in Sue's case, randomly leaving off a few items makes sense, perhaps because she assumes that Harvey's reason for the $100 cap is that he can't afford anything more. If so, that pretty clearly distinguishes her case from the situation that would confront the President should Congress fail to raise the debt ceiling. The U.S. can afford to borrow more money. What it can't afford is a default.


Unknown said...

“Rather, he is obligated to minimize the constitutional violation and the harm to the country.”

You may have addressed this in other writings, but what should an executive officer do where he must choose between these two? That is, minimizing the constitutional violation will maximize harm to the country, or vice versa?

Michael C. Dorf said...

That's a great question. In our first major article on the subject, we propose something akin to what philosophers call threshold deontology. In this context that means that the obligation to minimize the constitutional violation is, other things being equal, stronger than the obligation to minimize ordinary harm but that avoiding very large harms is more important than minimizing constitutional violations. We discuss Lincoln on habeas corpus, suicide pacts, etc.

Unknown said...

This may be far afield, but do you see the existence of a super-constitutional duty to ensure the existence and continuity of the constitution itself?

Assume for the sake of argument that the constitution of 1860 allowed secession. Assume further that Lincoln personally agreed with that assessment. (NB: not endorsing either assumption). Assume finally that Lincoln also believed that secession would doom the constitution. Does Lincoln then have the authority, perhaps the mandate, to violate the constitution, as narrowly as possible, in order to preserve it?

Personally, the problem is that the theory relies on personal subjective assessments. Leaving aside the merits of the civil war and slavery, Lincoln had much to gain politically by successfully prosecuting the civil war. It’s hard to imagine that a rump Union would have re-elected him in 1864. By waging the civil war he ensured that at least his presidency wasn’t doomed before it began. In that case, personal politics aligned with righteousness, but it is far too easy to imagine situations where the two diverge.

Michael C. Dorf said...

In some sense, that's too easy: Gov't officials take an oath to "preserve . . . the Constitution," so there's a duty to preserve within the Constitution. Presumably that doesn't mean "preserve unchanged," so constitutional amendments shouldn't be resisted but other means of change should be. In the hypo, presumably alternate-Lincoln thinks that the Constitution is formally preserved but not actually preserved by secession. In that case, I guess, the interesting duty would have to be super-constitutional, because complying with the constitutional duty would be trivial: it preserves a constitution that self-destructs. In any event, whether there is such a super-constitutional duty depends, for me anyway, on what the alternative will be. I believe our constitution is sub-optimal in numerous ways, so there are lots of alternatives that would be better, but there are also lots of alternatives that would be worse.

egarber said...

Is there a relationship worth exploring between this challenge and discretionary authority generally? In other words, if a president - because of resource scarcity - is allowed to prioritize going after say, violent criminals vs non violent - does that create a sort of precedent for discretion in other contexts?

Obviously, my hypothetical is different; whatever the President does there, the action won’t exceed a spending limit. But at the same time, I know powers can be generalized in constitutional analysis. So I’m wondering if perhaps this leaves room for action that actually is NOT unconstitutional - i.e., the President exercised valid discretion making choice X amid Congress’s utter dysfunction.

RamblinDash said...

What do you think of the argument that, where the debt ceiling and the spending laws conflict, the president is actually constitutionally required to mint the coin? It seems pretty persuasive to me, because (if you believe that the President is authorized to mint the coin, which seems clear enough even if not intended), then minting the coin would allow the president to comply with both the spending laws and the debt ceiling.

egarber said...

Or maybe asking my question more directly: can conflicting law create room for constitutionally allowable Executive discretion?

Joe said...

"if you believe that the President is authorized to mint the coin"

Looking at the Verdict articles (including by his co-author), it appears that they don't think it is "clear" that it is authorized, putting aside other problems as to worrying about people not trusting the money supply if that is used.

At one point, for example, administrative law is cited to argue that application of the law is unreasonable. The only real reason it could be justified is constitutional avoidance, and it is argued there are better ways to go there.