Friday, November 19, 2021

A Potentially Friendly Amendment to the Buchanan/Dorf Debt Ceiling Work Disguised as a Misguided Critique

 by Michael C. Dorf

A new article in the Yale Law Journal by Emory law professor Matthew Lawrence argues that in deciding separation of powers cases, courts ought to take account of racial, sexual, class-based, and other forms of subordination in addition to the other values--such as liberty and efficiency--that concern courts and scholars. I much agree. Insofar as text is unclear, as it typically is in the cases of concern, there is no reason to exclude such important constitutional values from the calculus. I thus have no quarrel with Professor Lawrence's core thesis and indeed welcome it.

But--yes, there is a but--in the course of illustrating his thesis, Professor Lawrence invokes the debt ceiling scholarship that I have co-authored with Professor Buchanan as a principal example of the sort of equity-disregarding or worse, even equity-undermining, position he is arguing against. In so doing, he misreads us and the broader literature.

Professor Lawrence writes that his analysis "reveals a powerful distributive argument against choosing the 'least unconstitutional option' in the event of a debt-ceiling impasse, as advocated by Neil H. Buchanan and Michael C. Dorf" in How to Choose the Least Unconstitutional Option. Why? Here's his argument:
Buchanan and Dorf’s alternative approach would deepen the imbalance in the modern costs of power. They presumably would have the President issue bonds to pay for mandatory, permanently appropriated obligations. By contrast, all discretionary spending would have to halt.[FN 405]  This would place the costs of the debt ceiling on the shoulders of those who rely on programs that are susceptible to annual appropriations and executive discretion. This would mirror and deepen the disparities in the costs of these tools described in Part II and convert the threat posed by the debt ceiling from a general one to a targeted one. The debt ceiling would become a threat felt most profoundly by marginalized groups, putting the responsibility to advocate for reprieve and make political concessions each time the debt ceiling approaches on already-squeezed groups who depend on annually funded spending programs.
Professor Lawrence characterizes the Buchanan/Dorf approach as regressive because under it, "all discretionary spending would have to halt." But Professor Buchanan and I didn't ever say that. So why does Professor Lawrence think we did? His footnote 405 is the key. It states: 
Professors Buchanan and Dorf address situations where “Congress has required” the President to spend. Neil H. Buchanan & Michael C. Dorf, Nullifying the Debt Ceiling Threat Once and for All: Why the President Should Embrace the Least Unconstitutional Option, 112 COLUM. L. REV. SIDEBAR 237, 245-48 (2012). Given the President’s authority to defer and to seek rescission under the Impoundment Control Act (ICA), 88 Stat. 297 (1974) (codified as amended in scattered sections of 2 U.S.C.), it is not apparent how this “required” rationale could apply to spending that is not expressly made mandatory by statute. Expenditures for most programs could be delayed for weeks or months, depending on the timing of the debt-ceiling impasse, before the ICA’s prohibition on recissions forced obligation or expenditure.
Note that although Professor Lawrence contends in text that he has offered a view contrary to our How to Choose article, which ran for nearly 70 pages in the main volume of the 2012 Columbia Law Review, he does not offer any support from that article for his inference that we would have the President seek to rescind or defer spending under the ICA. Why not? Well, because nowhere in that article do we say or even hint that this is our view. Throughout the article, we make clear that in the disastrous situation in which the government runs out of borrowing authority, the President should borrow just enough money to cover the difference between revenue and appropriations. We acknowledge the ICA's existence at page 1200 of How to Choose, but we do so for the purpose of demonstrating that the President lacks unilateral power to cut spending in a debt ceiling crisis. We do not state there or anywhere else that the President should invoke the 45-day deferral period that would be allowed under the ICA. And indeed, the whole thrust of our separation of powers argument is that the President minimizes the usurpation of legislative authority by borrowing exactly the difference between revenues and appropriations pursuant to the most recent Congressional enactments.

Professor Lawrence nonetheless attributes to us the view that the President should prioritize non-discretionary spending because one of our follow-up papers referred to spending that "Congress has required." Yet in that follow-up article as well, even though we discussed the ICA, we never said that in a debt ceiling crisis the President would be obligated to defer (for up to the statutory limit of 45 days) whatever spending is deferrable under the ICA before borrowing in excess of the debt ceiling. And having checked in with Professor Buchanan about this point yesterday, I can confidently say that it never occurred to either of us that this was a possible implication of our view.

Perhaps what Professor Lawrence meant to say--or what he ought to have meant to say--is something like this: although Buchanan and Dorf don't expressly endorse a President prioritizing nondiscretionary spending over discretionary spending by using the temporary deferral authority of the ICA, that is a necessary implication of their view, and it has harmful distributional consequences. Accordingly, and in a spirit of charity, I shall read Professor Lawrence as making that claim.

I haven't given sufficient thought to the question whether this claim is correct. My preliminary view is dubious, however. Throughout our writings on the debt ceiling, Professor Buchanan and I made various assumptions about the  kinds of actions that "count" as available. Even beyond the "extraordinary measures" that the Treasury Secretary typically uses to delay a debt ceiling doomsday in each crisis, there are some super-extraordinary measures that we don't think need to be on the table, even if they would be technically legal. For example, the President surely has the discretionary authority to decline to accept his own salary. Likewise, he can ask wealthy Americans to pay extra taxes out of a sense of patriotic duty. There is likely some authority to sell or lease government property (presumably at fire-sale prices in the event). In our view, there's no "exhaustion" requirement with respect to these sorts of actions. Given that the whole point of the ICA is to prevent Presidential unilateralism, it would be a bit odd to say that it obligates such unilateralism.

Nonetheless, I could be wrong about that. Perhaps the Buchanan/Dorf view really does unwittingly commit us to saying the President must prioritize nondiscretionary spending and defer such spending as he can under the ICA for as long as he can before issuing extra debt to cover such spending. If so, Professor Lawrence's intervention could be affirmatively helpful. After all, his main argument is that antisubordination values ought to play a role in separation of powers analysis. If the question is close under our view as originally articulated, considering antisubordination as a factor could tip the balance against prioritizing nondiscretionary spending in choosing the least unconstitutional option. Put differently, if Professor Lawrence had not been so intent on using an imaginary version of Buchanan/Dorf as a foil for his program, he might have seen how he could have offered his view as a friendly amendment to our actual view. Perhaps in subsequent work, Professor Buchanan and I might treat it that way.

In the meantime, however, it's very hard to see how Professor Lawrence sees his rejection of his version of Buchanan/Dorf as advancing his own view. How does he think that taking antisubordination into account leads to a different prescription for a President faced with a trilemma? He endorses what he calls "the debt ceiling’s assumed requirement that all federal spending must halt." Because halting all federal spending would be disastrous for everyone, not just the oppressed, Professor Lawrence says, that penalty default (my term, not his) will concentrate the minds of members of Congress so that they timely repeal, raise, or suspend the debt ceiling. Conversely, he faults Professor Buchanan and me for providing an escape hatch that would, in his view, reduce political pressure on Congress to raise the debt ceiling.

There are four main problems with Professor Lawrence's critique and affirmative proposal.

First, Professor Lawrence is badly mistaken if he thinks that Professor Buchanan and I ever advocated choosing the least unconstitutional option as a means of relieving pressure on Congress to repeal, raise, or suspend the debt ceiling. On the contrary, we have been extremely clear that we think an unresolved debt ceiling impasse would be catastrophic. We expressly stated in How to Choose (at page 1202) that "we favor repeal of the debt ceiling on policy grounds," and we have jointly and individually advocated that policy repeatedly over the last decade. Meanwhile, judging by the reaction of the Secretary of the Treasury and others, it's obvious that no one is taking false comfort in the view that the Buchanan and Dorf approach makes failure to raise the debt ceiling no big deal.

Second, Professor Lawrence is wrong in his reference to "the debt ceiling’s assumed requirement that all federal spending must halt." There is no such assumed requirement. Rather, the assumed requirement--the conventional wisdom against which Professor Buchanan and I have been arguing for a decade--holds that the President would choose which spending to prioritize. After all, even when the government hits its debt ceiling, revenue continues to come in, just not enough to cover all appropriations and obligations. The "assumed requirement" is that some federal spending, not all federal spending, must halt, and that the President has discretion to decide which.

Third, Professor Lawrence's view is entirely based on deterrence. He doesn't say that eliminating all federal spending would be less disastrous than the actual conventional view of cutting some federal spending, much less that it would be better than the Buchanan/Dorf approach of issuing unauthorized debt. Instead, he apparently thinks that the in terrorem effect of a threat to cut all federal spending suffices to spur Congress into action whenever a debt ceiling crisis is imminent. That view is odd, to say the least, given that Congress repeatedly comes close to hitting the debt ceiling, already to the point where it has adversely impacted the U.S. credit rating.

Fourth, Professor Lawrence never expressly addresses what he thinks should happen if deterrence fails. One is left to conclude that he thinks that in such an event, the President should carry out the threat by halting all federal spending, despite the fact that doing so would make a catastrophe even worse. Is that sensible? Consider an analogy. U.S. strategic defense since the Cold War has relied on our nuclear deterrent and mutually assured destruction. Should a nuclear-armed adversary use nukes against us, we say, we will retaliate by nuking them--and by them we mean their civilian population centers. Suppose deterrence fails and the U.S. has been hit by a nuclear attack that causes mass casualties. Doctrine now calls for the U.S. to violate international law by deliberately killing millions of civilians in the adversary country. Should a President actually order the retaliatory strike? It's one thing to say that the President should give every appearance of being willing to do so to maintain deterrence. It's quite another actually to go through with it after deterrence fails.

Professor Lawrence's failure even to address what should happen if deterrence fails is especially surprising, given that his overall approach suggests an answer to that question. He could argue that if Congress failed to repeal, raise, or suspend the debt ceiling, the President should make spending cuts in a way that prioritizes spending for the most vulnerable. That approach would maintain deterrence--because powerful and well-to-do actors would still stand to lose enormously from a debt ceiling crisis--while incorporating antisubordination principles into separation of powers. 

To be sure, the approach I am offering Professor Lawrence as a friendly amendment to his view would still be vulnerable to the critique of spending cuts that Professor Buchanan and I have offered--namely, that giving the President unilateral power to cut spending usurps too much legislative power. After all, even Professor Lawrence doesn't think that antisubordination principles completely displace all other separation of powers concerns.

Still, had Professor Lawrence accurately characterized the Buchanan/Dorf position and thought through his own position more clearly in the event deterrence fails (which is, to repeat, the only circumstance that the Buchanan/Dorf view addresses), we could have had an interesting debate about how best to incorporate antisubordination values into a debt ceiling crisis prescription. Should such values come in to block off whatever pressure the President might otherwise feel to defer spending for up to 45 days under the ICA while issuing congressionally unauthorized debt--as per the Buchanan/Dorf proposal under what I'm calling Professor Lawrence's friendly amendment? Or should the President make unilateral spending cuts while trying as much as possible to protect the most vulnerable--as per my friendly amendment of Professor Lawrence's view?

That would be an interesting debate. I hope that Professor Lawrence takes this essay as invitation to engage in it in a way that accurately characterizes our views and in the same spirit of charity with which I have read his article.

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N.B.  Because I shared the substance of this essay with Professor Buchanan and he agreed with it, in some places I used the term "we" rather than I, even though the prose today comes from me alone.

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