Maybe You Can Fix This Stupid Law

by Neil H. Buchanan

There is something very odd about the current debt ceiling stare-down.  The estimate of the drop-dead date has now been moved up twice, and the current November 3 estimate is only twelve days away.  Yet, to read the news, one would think that this was not a particularly important matter.  Not only has there been next to nothing in The New York Times about the debt ceiling thus far, but the usual flood of phone calls from reporters that Professor Dorf and I have experienced during earlier stare-downs has been but a trickle this time around.

There was one very good piece in USA Today last week, in which a reporter not only accurately described the Buchanan-Dorf trilemma analysis, but he even asked the White House press secretary about it.  The response was infuriatingly dismissive, reflecting the Administration's insistent belief that only they are willing to face the "hard truths" about the debt ceiling.  The reporter also elicited an amazing assertion from a former Bush I official to the effect that, "Hey, the government makes all kinds of promises.  Why would you expect them to honor those promises, especially for entitlements?"  I responded to all of this in my new Verdict column today: "Who Is Looking for the Easy Way Out Regarding the Debt Ceiling?"  I hope that many people reading this post will take a look.

Here, I want to discuss the possible ways in which the debt ceiling law could be neutered.  Like most sane people who have thought about the issue, I have long called for the law's repeal.  That, however, is not as much of a fix as it might seem to be, because a future Congress could decide to pass a new debt ceiling law, which would be just as damaging -- and just as unconstitutional -- as the current law.  However, because of the Article III "case or controversy" requirement, there is no way for the Supreme Court to declare definitively that the debt ceiling is unconstitutional, unless there is a real disaster.  At that point, if the Administration carried through on its threat to default on some of the government's obligations, there would be injured parties who could sue the government.  But that means that the only way to reach a judicial resolution is actually to experience the worst outcome that the debt ceiling law's existence makes possible.  [Update: As I describe in a subsequent post, there are ways to seek prospective relief.  However, as a practical matter, it is nearly impossible to imagine how that would actually happen.  Later in that post, I note that there is a way to get an after-the-fact judicial resolution, but only if the president acts first to prevent default.]

The next best thing would be for Congress to repeal the law and to make it impossible for a future Congress to bring it back.  However, unless Congress and the States pass a constitutional amendment to that effect -- as politically unimaginable an outcome as an amendment clarifying that the Second Amendment means what Professor Dorf rightly says it means -- Congress cannot bind future Congresses never to pass any particular law.

Does that mean that there is no way to neuter the debt ceiling permanently (short of an outbreak of sanity)?  Professor Dorf and I took a crack at that question, and we wrote it up in an op-ed which might (or might not) soon be coming to a major newspaper near you.  Whether or not it is ever published, I am comfortable describing the basic idea here, in the context of comparing our solution to other possible solutions.  (If the piece does see the light of day, we will surely link to it here on the blog.)

The so-called Gephardt Rule represented the heyday of budgetary sanity.  Then-House Majority Leader Richard Gephardt created an internal procedural rule requiring that the debt ceiling rise automatically whenever a spending measure implied that the government would need to borrow money.  But as we know, when the Contract On America majority led by Newt Gingrich took over the House in 1995, that rule was quickly jettisoned.  Is there a way to create a binding version of the Gephardt Rule, short of a constitutional amendment?

We think so.  If Congress were to pass a law (not an internal procedural rule) that creates a presumptive rule of construction under which spending measures are deemed to include any necessary increases in the debt ceiling, any future Congress could still get rid of that law entirely, or it could override the presumption on a case-by-case basis.  Passing such a law might be palatable to the Tea Party types in the Republican caucus, because voting for the law would not be a "vote to increase the debt ceiling."  In fact, it would (as I discuss below) in some ways be very appealing to the extremists, because it would mean that every vote on spending measures would also be a vote for an increase in the debt ceiling.  If they think that they want to "stop spending," that might be the best way for them to frame the debate every time an appropriations bill comes up for a vote.

The question is whether this statutory fix would have more of a binding effect in practice than something that is merely a procedural rule internal to a house of Congress.  Again, we think so.  Full-on repeal of our statutory rule of construction would not be necessary for someone to make the debt ceiling a big deal again.  It would merely be necessary to say, "Hey, let's write this spending bill with an override of the presumption."  The good news is that it would be very difficult to find the votes to support even such a limited move; and even if members of Congress would agree to such a bill, a president from either party would be crazy to sign it.

What would happen then?  Strangely, the good news is that we would "only" have another government shutdown.  Because the spending measure (carrying the override of the rule of construction) would not have passed, there would be no appropriations to keep the government operating.  Rather than having a trilemma and a possible default, we would have a rerun of October 2013.

Indeed, as I noted above, making increases in the debt ceiling no longer a separate vote, but simply a part of every appropriations vote, would give the Republicans a reason to fight harder on every appropriations bill.  That might result in reduced spending overall (which is generally a bad thing, at least given the spending priorities of current Republicans), or it might increase the frequency of shutdowns.  Which leads me to a new dictum: Better that the government should shut down for a thousand days than that the government default on its obligations even once.  Frankly, I cannot see how the politics of shutdowns would not quickly turn toxic for Republicans.

Earlier this year, I wrote "You Can't Fix This Stupid Law," here on Dorf on Law.  In the second half of that piece, I argued that the various proposals to "mend, not end" the debt ceiling were inadequate to the task.  There, I criticized proposals offered by one of the deficit-scold think tanks, which included some terrible ideas along with a few veiled attempts to reinstate the Gephardt Rule.  Those proposals were thus appealing as far as they went, but they contained no mechanism for making the new rules stick.

Short of a binding ruling that the debt ceiling is unconstitutional, therefore, I believe that the proposal that Professor Dorf and I have laid out sets up the political incentives in the way most likely to avoid future trilemmas.  It does so with a cost, of course, and government shutdowns should not be trivialized.  In an era when one party is being driven by people who do not care about governance, however, there are going to be some costs to their craziness.  The best we can do is to limit the consequences of such insane behavior.