Arguendo Reinforces the Other Side's Narrative (Inarguably)

-- Posted by Neil H. Buchanan

Yesterday, at Duke Law School's new tax policy colloquium, I presented a draft (not yet ready for public dissemination, but abstract available here) of the paper that Professor Dorf and I are writing. In it, we discuss the principles that a President should use to decide among a set of options, all of which are arguably unconstitutional. The motivation for that paper, of course, is the debt ceiling standoff that nearly destroyed the economy last summer, and that might be repeated soon (with no guarantee that the word "nearly" will be apt the next time).

Our argument proceeds basically along the following lines: the debt ceiling statute violates Section 4 of the 14th Amendment (A14S4); and even if it does not, if Congress ever puts him in a no-win situation, the President should choose to ignore the debt ceiling as the "least bad" option (among a "trilemma" of choices: cutting spending, raising taxes, or issuing more debt); and even if the debt ceiling is not such a no-win situation, something else might come along that does put the President in a constitutionally impossible situation, so we need to think through how the President should sort through any such choices.

The colloquium students and professors at Duke had clearly read our draft carefully, and they offered extraordinarily helpful feedback. The one piece of feedback that I had not anticipated was that Mike and I are giving ground too quickly. That is, we have been putting nearly all of our efforts into thinking about the trilemma and the general constitutional principles, without vigorously defending the arguments based on A14S4. At most, I had argued that the debt ceiling was unconstitutional as applied, under A14S4. Several professors and students thought that even that gave too much ground, however, because there is a strong argument that the debt ceiling statute is unconstitutional as a facial matter under A14S4.

Notwithstanding one's views regarding the strength or weakness of those arguments, this feedback reminded me just how much ground I often cede in various debates. One commenter on a Dorf on Law post late last year, for example, reminded me that referring to Paul Krugman and Joseph Stiglitz as being on "the left" merely proved that we have no left left in this country. (Similarly, those who refer to the "liberal wing" of the current Supreme Court have not read Hosanna Tabor or any of a long list of other testaments to the right-centrism of Breyer et al.)

How did Mike and I end up skipping past important arguments? In part, it was a matter of the intellectual challenge, because the "trilemma" and the general constitutional arguments are relatively uncharted territory (in fact, they are probably unique to us), and as academics, we are drawn to such arguments. In addition, however, the path of the debt debates last summer saw people quickly taking strong stands on A14S4, with those in opposition to that argument asserting that it is based on impermissibly loose interpretations of key constitutional terms. When we realized that we could analyze the debate without ever touching the 14th Amendment, we thus saw a way forward that set aside that contentious issue.

As so often happens, this is too easily interpreted (and, at least in my case yesterday, too easily presented) as saying that the ground we are ceding is barely worth defending. This is especially interesting to me, because one of my first attempts to write for an audience of legal scholars (which was first drafted in 1998, but re-edited and published many years later as a book chapter) was largely and explicitly devoted to warning of the dangers of assuming arguendo the premises of one's ideological opponents. In that case, the subject was the use of "economic tools" in legal analysis, and my warning was that those putatively neutral tools are anything but neutral, and that arguing as if those tools are neutral and useful reinforces the narrative of those who say that economics provides non-ideological bases from which to evaluate the desirability of various policies.

Earlier this month, this issue came up again, when I was commenting on a draft paper by Professor Maxine Eichner of the University of North Carolina's law school. She is embarking on an important project to try to argue against "neoliberal" policies (which are based squarely on assumed notions of economic efficiency), from a philosophically liberal perspective. In my commentary, I suggested that the real danger in her project will be the temptation to argue on neoliberal terms against neoliberalism. For example, one can easily make an efficiency-based argument in favor of welfare-state programs like child care, showing that such programs enhance the productivity of workers and thus help to maximize wealth. Furthermore, I pointed out that it is not merely tempting, but intellectually fun and satisfying, to beat the other side at its own game. Why not play the game on the road, and win big in front of a hostile crowd?

While one obviously cannot draw straight lines between academic debates and public policy discussions, a NYT op-ed last week offered one possible example of the dangers of conceding assumptions arguendo. Timothy Egan, one of the Times's liberal columnists who only occasionally shows up in the print edition, had a piece called "The Fraud of the Tea Party." While offering a full-throated liberal (by current standards) attack on the latest manifestation of right-wing anti-government ideology, Egan stated that the Tea Party was "born out of legitimate frustration over Wall Street bailouts and runaway government spending." What was that again? No one who looks at actual data could say that it is legitimate to feel frustrated over "runaway" spending. That is simply not the reality in the United States, nor even in the now-weakest countries in the euro zone (as I pointed out last month).

Egan went on to disapprove of Mitt Romney's support of "the huge bailout of Wall Street, which passed all that downside capitalistic risk on to the rest of us." Sorry, but we were already bearing that risk. The bailouts were poorly designed in some important ways, but they were wildly successful in preventing that downside risk from turning into very real economic destitution for all of us.

It is possible that Egan actually believes the premises of these two damaging concessions. Based on everything that he (and other commentators like him) have written, however, I strongly suspect that we are seeing the manifestation of arguendo concessions by people who know better. Even Paul Krugman, who is hardly shy about calling it as he sees it, often relies on models with "rational expectations" to make his points, even though there is no reason to believe that he thinks that is a plausible assumption to build into economic models.

This is why Professor Eichner's work will be so important. If she is able to engage the debate in a way that does not shift the ground toward her opponents, then she will help the rest of us avoid falling into that trap.

As I argued last week, the difficulty in holding the line on shared assumptions is that it might prevent scholars from engaging with each other at all. This is a serious concern, but I am becoming convinced that too much is currently being lost by arguing on the other side's turf. At the very least, Professor Dorf and I can profitably remind ourselves not to rush past some important arguments. We can and should move onto our other arguments, of course, but this is yet another example of how easy it is to lose sight of the big picture.