Trilemma Watch Continued: Still No Real Substantive Engagement With Our Argument

By Mike Dorf

The good news from Washington in the last few hours is that the less hardline Republicans appear to be looking for a way out of the government shutdown and probably will not, if push comes to shove, refuse to raise the debt ceiling. But one can never be sure that sanity will prevail and thus, once again, the press has been focusing on what might happen if the debt ceiling is not raised before the government's borrowing authority runs out in two weeks.

The latest story along these lines, by Adam Liptak in the NY Times, lists the Buchanan/Dorf trilemma analysis as the third of three ways by which the President could borrow in violation of the debt ceiling.  The other two are: (1) the notion, most closely associated with Eric Posner and Adrian Vermeule, that the President has emergency powers that he could invoke to avert a financial disaster; and (2) the notion that Section 4 of the Fourteenth Amendment renders the debt ceiling unconstitutional.  The article quotes Posner in support of option (1), while quoting Professor Buchanan and me in support of option (3).  No contemporary source is quoted in support of option (2), although the article does cite the 1935 Supreme Court decision in Perry v. United States to show that Section 4's broad language is not limited to the historical context of its post-Civil War enactment.

Regular readers of this blog probably do not need to be reminded that Professor Buchanan and I have been somewhat frustrated by the shallowness with which legal scholars who disagree with us have engaged with--or rather, failed to engage with--our argument.  We have written three law review articles (available here, here and here) as well as numerous blog posts and columns explaining our position. Yet despite the fact that our argument has received quite a bit of publicity in the press (e.g., just in the last week in the Washington Post, The Atlantic, the L.A. Times and twice in The NY Times) the closest thing we have seen to a sustained critique of our position has come from thoughtful questions posed by commenters on this blog.  The law professors who are weighing in on these questions appear not to have read our actual analysis or to have badly misunderstood it.  Here I'll respond to three prominent critics with whom we have tried, thus far without success, to engage in a serious argument: Michael McConnell; Eric Posner; and Larry Tribe.

McConnell's arguments are the shallowest.  When I was on an NPR show with him earlier in the year, he actually said that he thought that for the President to borrow beyond the debt ceiling would not be, as Professor Buchanan and I have argued, the "least unconstitutional option," but "the most unconstitutional option."  Really?  More unconstitutional than the President deciding to unilaterally raise taxes?  To unilaterally raise taxes on particular named billionaires who are active in Republican party politics?  More unconstitutional than a Presidential declaration of war on Venezuela to acquire its oil fields for revenue?  On Canada for its tar sands?

Professor McConnell is now quoted in the latest NY Times article asserting, “I don’t think anyone in their right minds would buy those bonds,” as though this is somehow a devastating and original criticism of our position and the other two rationales for Presidential borrowing beyond the debt ceiling.  Yet in every one of our academic articles we have been careful to explain that unilateral Presidential borrowing would only be the least unconstitutional option if the markets cooperate. The only way to find out whether they would cooperate is to announce a proposed bond sale and see how large an interest premium the markets demand.  McConnell might turn out to be right but at this point he still hasn't offered any real analysis, just sound bites.

As I noted in an earlier post, Professor Posner's earlier criticisms of the Buchanan/Dorf approach are confused, at first rejecting our framework and then apparently endorsing it.  Posner's criticism in the latest Times article is not confused but is instead formalistic.  According to Liptak, "Professor Posner countered that the [Buchanan & Dorf] article was unrealistic. It would be political suicide, he said, for Mr. Obama to announce that he was violating the Constitution."  But this assumes that the core of our analysis calls for the President to say he is choosing the least unconstitutional option.  An entire section of our main article addresses the question of whether the least unconstitutional option should, ipso facto, be deemed constitutional.  We say that this is a plausible approach but that all things considered, it is more honest to evaluate each option as actually unconstitutional, citing Michael Walzer's concepts of dirty hands and tragic choices.  Our article is titled "How to Choose the Least Unconstitutional Option," not "How to Sell to the Public the Choice of the Least Unconstitutional Option."  If, at the end of the day, the President concludes that issuing unauthorized debt is the least unconstitutional option but President's political staff concludes that it is best to sell the least unconstitutional option to the public as constitutionally valid, he still will have complied with our decision procedure.  And I can't help but add that scholars who build their view of the American Presidency on the philosophy of a Nazi (as Posner and Vermeule proudly do in invoking Carl Schmitt with admiration), may not have their fingers on the pulse of what sells to the American people.

Finally, we come to Professor Tribe, whose views deserve to be taken seriously, even if they have been articulated somewhat cursorily.  In both the NY Times and Washington Post stories, Tribe refers to me and Professor Buchanan as "otherwise sensible", but avers that our approach "abandons the rule of law." I'm grateful that Professor Tribe thinks we are generally sensible (just as I think his conclusions are generally sensible), but his conclusion about the rule of law gets things just about exactly backwards.

In the summer of 2011, Professor Tribe argued in a NY Times Op-Ed that Section 4 of the Fourteenth Amendment is no magic bullet because it doesn't authorize the President to borrow without congressional authorization.  That piece and subsequent exchanges with me and Professor Buchanan were instrumental in our development of the trilemma argument.  Inspired by Tribe's observations, we came to see that anything the President might do would be unconstitutional, but precisely because of our commitment to the rule of law--the opposite of abandonment of the rule of law--we argued that even when the President has only unconstitutional options, his decision should be guided by law.  We acknowledged that there are few precedents for choosing among unconstitutional options, or as Professor Tribe now says, that "we have no metric for comparative lawlessness and are unlikely to agree on one in real time."

Fair enough, but if there is a genuine trilemma, then that is all the more reason for the development of a metric for choosing among unconstitutional options.  And that's why Professor Buchanan and I tried to develop one before the crisis reoccurred.  We built our proposed metric based on the two scant precedents we do have: Lincoln's all-the-laws-but-one speech and the Supreme Court's 1976 opinion in Nebraska Press Ass'n v. Stuart, in which the Court resolved a conflict between a criminal defendant's Sixth Amendment rights and the First Amendment rights of the press.  Perhaps Professor Tribe thinks we developed the wrong metric but he hasn't identified an alternative one, and if he agrees with us that all of the President's realistic options--including doing nothing--are unconstitutional, then I fail to see how he thinks the President can act without a metric for comparative lawlessness.  It seems to me that in giving up on the possibility of developing such a metric for comparative lawlessness, Professor Tribe is the one who is giving up on the rule of law.

The only escape hatch that Professor Tribe appears to have left himself is his claim (in the Liptak article) that there is no trilemma after all because "Congressional spending directives to the president contain an implicit condition that, if the money just isn’t there to be spent, the president must make tough choices — prioritizing repayment of bondholders who have lent money to our country over those who have been promised payment under various sorts of entitlements . . . ."  But this claim is false for two reasons.

First, it seems plainly wrong as a matter of statutory interpretation.  Professor Tribe would find an implicit authorization for the President to cut spending at his discretion in the teeth of Congress's explicit prohibition of the President doing just that in the Impoundment Control Act, which contains no exception for circumstances in which the federal cash register is empty.  I suppose one could argue that Congress wouldn't want the Impoundment Control Act to apply when the Treasury is out of money, but that is the sort of move that is usually forbidden in statutory interpretation: allowing the imagined unspoken intentions of Congress to prevail over its contrary enacted text.  Our various articles discuss the Impoundment Control Act.  Professor Tribe does not.

Second, as we explained in the second of our follow-up articles in the Columbia Law Review, even if one imagines that Congress enacted a statute delegating to the President the authority to cut budget items of his choosing by however much he deems appropriate in order to get below the revenue cap, that sort of sweeping delegation across the entire range of the federal budget would surely violate the nondelegation doctrine, at least absent some congressionally-supplied intelligible principle for prioritization, and here there is no such intelligible principle (which is hardly surprising because the delegation itself is imaginary).  If there is anything at all left to the nondelegation doctrine--and the cases repeatedly state that there is something left of it--surely this would be a textbook violation of it.  And as each of our articles emphasize, the Line Item Veto case, Clinton v. New York, strongly underscores this argument.

So, do I think that the arguments Professor Buchanan and I have advanced for our view are impervious to criticism?  Of course not.  I would welcome serious engagement by our critics.  But thus far--with the exception of thoughtful comments by readers on the blog--I haven't seen any such engagement.