Sophistry is Sophistry: from Debt Ceiling Doubletalk to Book Bans
by Neil H. Buchanan
After the chaos of the last month or so, the world now finds itself in an unexpected limbo, waiting to see whether the deal that President Biden worked out with Kevin McCarthy late last week will be passed by both houses of Congress and signed into law. This must happen on time (apparently by next Monday), or we will be back to facing two damaging alternatives: the US government will default on its obligations for the first time in history, or the White House will refuse to allow such a default and instead will issue new federal debt in excess of the debt ceiling.
And to be clear, even though Professor Dorf and I have repeatedly emphasized that the damage from defaulting is much, much worse than the damage from being forced to violate the debt ceiling statute, both paths would create constitutional and economic crises. If the current deal does goes through, Professor Dorf and I (together, separately, or more likely both) will offer a few postmortems in due course. For now, however, we are in limbo along with everyone else.
In the interim, I want to take this opportunity to revisit one of the low points of the recent tumult and compare one commentator's utterly dishonest argument regarding the debt ceiling to one politician's utterly dishonest argument regarding book bans. Those two topics appear to have virtually nothing in common, but when sophists get their grooves on, there are certain common go-to moves that they cannot resist.
It seems like a million years ago at this point, but it has been barely two weeks since the editorial page of The New York Times decided to publish a guest op-ed by a conservative law professor named Michael McConnell. The unavoidable implication of that essay was that Biden is in the end obligated to agree with whatever Republicans might demand as the price of increasing the debt ceiling to prevent default, because the Constitution gives the Congress "the power of the purse," which means that negotiating "is the ordinary stuff of politics."
And if negotiations break down? Biden has to keep negotiating! Later that week, I published columns on both Verdict and Dorf on Law pointing out that the debt ceiling is anything but ordinary politics.
The most memorable part of the McConnell essay, however, was his casual dismissal of arguments that the debt ceiling violates Section 4 of the Fourteenth Amendment, which says that "[t]he validity of the public debt of the United States, authorized by law … shall not be questioned." McConnell indicated no awareness whatsoever that there is a constitutional argument based on separation of powers and not on the Fourteenth Amendment -- a lack of awareness that was due to either bad memory or flagrant dishonesty -- but even on its own terms, his response to the Fourteenth Amendment argument was breathtakingly inane:
For the United States to fail to pay interest or principal on its debt would be financially catastrophic, but it would not affect the validity of the debt. When borrowers fail to make payments on lawfully incurred debt, this does not question the validity of those debts; their debts are just as valid as before. The borrowers are just in default.
I encourage any readers who wish to understand just how vapid McConnell's argument is to read either of my columns linked above. For present purposes, however, I want to pretend that I am engaging in a good faith academic discussion with an honest scholar, a discussion that would allow us to move past the silliness that McConnell somehow was allowed to publish in The Times. Because I am not in fact dealing with such a person, this must be an entirely hypothetical exercise. Even so, it is instructive.
What would an honest attempt to respond to the Buchanan-Dorf run of arguments look like? One point of contention might be based on our recent co-written column, "A Debt is a Debt is a Debt," one part of which summarized an argument that we made in a Columbia Law Review article in 2014. We argued that a President cannot avoid violating the debt ceiling by refusing to pay bills as they come due, because those bills must at some point be paid -- with interest, because of the Prompt Payment Act, which also describes unpaid bills as "debt." If we were to reach the drop-dead date, and the President then followed the conventional wisdom by stiffing people who were owed $5 billion in payments on that day, the total outstanding debt of the United States would go up by $5 billion, which is above the debt ceiling. Even trying to play the debt ceiling game is thus a can't-win proposition, because when the payments come due, they are due.
How would an honest, though skeptical (even hostile), scholar respond? Maybe with this: "You say that McConnell's argument about the Fourteenth Amendment is sophistry, apparently because you believe that he was wrong to say that the unpaid 'debts are just as valid as before. The borrowers are just in default.' How is that different from the Buchanan-Dorf argument that unpaid debts are still debts that have to be paid?"
Good question, imaginary colleague! Let us posit for a brief moment that there is in fact no difference: that unpaid debts are unpaid, but still valid, debts. Does that mean that McConnell was not being asinine after all? Hardly. Recall that the key constitutional language does not say that the debt shall not be invalidated. It says that the validity of the debt shall not be questioned. And when a debtor fails to pay his obligations in full and on time by saying to his obligee, "Hey, don't worry about it, I still owe you," the now-stiffed party might very reasonably say: "Wait, I have QUESTIONS!"
Especially when the debtor in question has an unbroken two-centuries-plus record of never defaulting, the obligee could reasonably question whether this unprecedented default is really as temporary or meaningless as she is being told. Among other things, because the unpaid obligee is now in a position of having to pay her own obligations without access to the money that she had been promised, she might at least question the validity of a promise that (per McConnell's reasoning) boils down to saying that "this piece of paper will continue to be valid, no matter how long we fail to pay it on its original terms, because this piece of paper says that we owe you money ... and we'll pay you at some unspecified point."
The law is hardly unfamiliar with situations in which debts that are not formally repudiated are nonetheless effectively unenforceable. One obvious example is the deadbeat dad scenario, in which -- for very, very good reasons -- we would never want the law to reward a deadbeat by saying that continuing to fail to pay for a long enough time will wipe the debt off the books. But that is hardly the whole story. At some point, the non-deadbeat custodial parent can at least take a tax loss for "worthless debts," even though those debts have not been formally repudiated. Unpaid debts can reach the point where they are no longer valid in anything but the most empty sense. To suggest otherwise is a kind of formalism so extreme that no honest person could say it with a straight face (and that even Antonin Scalia disparaged).
Again, however, it is not in fact true that the Buchanan-Dorf argument implicitly accepts the idea that unpaid debts are still valid. We have argued in essence that the unpaid bills are replaced by new debt as soon as the old obligations are not paid. Essentially, whether we are talking about defaulting on a T-bond payment or on a federal contractor's invoice, the new situation sees the old obligations having been proved to be invalid because of the nonpayment. Saying that those now-invalidated debts have been replaced by new debts recognizes that the obligations going forward are loans that carry different terms than the obligations that they replaced. A bondholder would go from holding a legally enforceable promise to pay $10,000 on June 5, 2023, to a supposedly legally enforceable promise to pay $10,000 plus interest (accrued at a statutorily-determined rate, that is, not as a result of a market transaction) to be paid someday. The contractor is even worse off, having been forced to accept a new, open-ended obligation after learning that the money would not be paid when legally required.
So, if the federal government ever were to default on any of its legal obligations -- on the terms that those obligations were originally brought into existence and agreed by the parties -- it will have at best substituted replacement debt for invalidated debt. And at the very least, people would reasonably question the validity of whatever new promises have been made, no matter whether we call those promises "new debt" or "the same old debt under new, involuntarily changed terms."
This kind of academic engagement can be illuminating, even though the bottom line turned out to be the same in this case regarding the Fourteenth Amendment. If only someone had actually tried to engage with any substantial part of our argument on anything resembling this level of honest give and take! Our ultimate position might be unchanged here, but skeptical engagement (in this case with an imaginary interlocutor) can still advance the argument.
At the top of this column (and in the title), I noted that there is a surprising similarity between McConnell's sophistry about the debt ceiling and another conservative's arguments about book bans. As it happens, my governor's attempt to use culture-war grievances to drive a presidential campaign have resulted in the banning of books (among many other things) from schools. Rather than simply owning what he is doing, however, the distant-second-place Republican presidential aspirant insists that the "legacy media" are distorting the story. ("Legacy media" is his RC Cola to Trump's Pepsi of "fake news.")
Indeed, he now dismisses one such story as a "poem hoax." As The Washington Post's Greg Sargent explains, the poem in question is Amanda Gorman's beautiful, uplifting "The Hill We Climb." One (and only one) parent objected to its "indirect 'hate messages' [that] would 'cause confusion and indoctrinate students.'" That objection then triggered the ban under a law that the governor championed. Sargent explains that "Gorman’s poem calls for bridging our divides to enable our country to live up to its promise, declaring this an incomplete project. The idea that this represents hate and indoctrination is farcical."
Too true. And as an aside, we apparently have reached the point where it is not good enough to say that the United States is getting better and better. We have to say that it is and always has been perfect. Criticizing Gorman's poem strikes me as similar to a person responding to a compliment -- "You look great!" -- by saying, "Oh, so I looked like crap every other time you saw me?"
But the central point here is that the governor is insisting that the banned books are not being banned at all. Why not? In the Gorman situation, his defense is that the school district "moved [the offending literature] from the elementary school library to the middle school library." See? Not banned. Just relocated, to stop some students from having access to it. What is this "ban" of which you speak! More broadly, as The Post's Jennifer Rubin reported on Sunday, the governor "claimed he does not ban books because people can still buy them."
So, for all those years when naughty books were "banned in Boston," it turns out that they were not banned at all. They were, after all, for sale in Paris! Presumably, if the federal government were to remove all copies of the governor's book from the shelves, that might not be a problem. It is true that most places outside the US would have no market for that particularly nonsensical book (Paris being an especially unlikely alternative), but so long as "people can still buy them" -- from, say, a single bookseller in Harlem, who is required by Merrick Garland and George Soros to sell the books for zero profit -- that is not a ban.
Ridiculous? Of course. But also deadly serious. In the book banning context, we are told that a ban is only a ban if the book is completely eliminated, unavailable anywhere on the face of the earth. In the case of the debt ceiling, a conservative tells us that only literal repudiation (indeed, as I noted in my columns two weeks ago, only a formal repudiation by act of Congress) makes a debt invalid -- and that a person could not even reasonably question its validity when a debt is not paid as required by law.