Dorf on Law

By Mike Dorf For personal reasons, I need to take a break from blogging for at least a week or two.  Professors Buchanan and Colb will continue to post on their appointed schedule, so there will be new content here on DoL, just not from me. Before signing off, however, I wanted to make a brief comment on the procedure leading to, and likely to follow, the shutdown/debt ceiling deal that appears to be emerging from the Senate. Supposing that the deal as it emerges from the Senate passes the House (a big "supposing") and is signed by President Obama, it will take some time to determine whether his strategy of not negotiating with a metaphorical gun to his head succeeded.  As a definitional matter, I think it's debatable whether his signing the legislation--which includes some concessions to the Republicans--counts as negotiation.  If I were a White House spokesperson, I would say it doesn't because the President didn't negotiate the deal; he merely agreed to s...

By Mike Dorf By now numerous commentators have weighed in on the recent interview of Justice Scalia in New York Magazine .  If you haven't read it yet, I urge you to do so.  Among the revelations that have gotten the most attention: (1) The Justice says he doesn't hate gay people and has friends who, he suspects, are gay, although none have come out to him; (2) He finds the tendency of people to share the details of their personal lives on Facebook peculiar and narcissistic; (3) He thinks sex in films is okay if it advances the plot but not if it's gratuitous; and (4) He believes in the Devil--not in some metaphorical sense of an urge to do bad present in each of us but in a literal sense, as, in Justice Scalia's words, "a real person."  Here I'll focus on the Devil. Is there something problematic about a Justice of the Supreme Court believing in the Devil?  In a legal sense, no, of course not.  In fact, it would violate three separate provisions of th...

-- Posted by Neil H. Buchanan Yesterday, here on Dorf on Law , I promised that today's post would present my view that the Federal Reserve must inevitably be the savior that prevents a default, should the Republicans' refuse to increase the debt ceiling.  Before making that argument, however, I will offer three short comments on related issues. First, in his op-ed in today's NYT, Paul Krugman essentially adopts the "choosing from among nothing but bad choices" framework that Professor Dorf and I have been advocating (literally for years, but most recently in yesterday's post).  He links to a Washington Post WonkBlog piece that carefully describes our work and that quotes extensively from an interview with Professor Dorf earlier this week.  This framework, of course, would be especially likely to make sense to Krugman, because he always uses his economics training to analyze real-world tradeoffs, not abstract fantasies.  In any case, it is good to see th...

-- Posted by Neil H. Buchanan In my new column on Verdict today , I discuss the press's persistently incorrect framing of the President's options in the debt ceiling debate.  I frequently field questions such as, "Does the President have a way to raise the debt ceiling on his own ?" or "Can the President just do what he wants, and ignore Congress?" or "Explain your argument that the President can simply go it alone " (emphasis added). The problem with viewing the issue that way, as I have tried repeatedly to explain, is that the President is not going to choose whether or not to "go it alone."  He will be forced to choose how to go it alone.  That is really what the trilemma is all about: Faced with nothing but illegal options, the President will have to choose one of them.  He cannot pretend that failing to pay bills when they are due is legal.  Neither Professor Dorf nor I deny that issuing debt beyond the debt ceiling violates a...

By Mike Dorf Last week the Cornell International Law Journal Online launched with essays by various students and scholars, including one by me  titled "Redefining Dumb Wars."  In the essay, I explore the meaning of then-Senate-candidate Barack Obama's opposition to "dumb wars" in light of his record as President.  I ask what makes the intervention in Lybia and the potential intervention in Syria different from President George W. Bush's intervention in Iraq.  I explain that for Obama as President, the small scale of the interventions initiated on his watch may take them out of the "dumb" category, while for the American people, the strategic aims of military use (or the seeming lack of coherent military aims) plays a larger role.  I then suggest that there is greater wisdom in the popular view than in the President's view. In celebration of the launch, I'm simply calling attention to my essay on CILJO .  It's a short piece--about t...

By Mike Dorf Last Friday  I commented on the non-debate between, on the one hand, Professor Buchanan and myself, and, on the other hand, various scholars who take different views of the options that would face the President should Congress fail to raise the debt ceiling.  I took issue in particular with Professors Michael McConnell, Eric Posner and Laurence Tribe, as they were the three other scholars cited in a  NY Times article that discussed the Buchanan/Dorf trilemma analysis alongside of other frameworks.  Professor Posner has now replied in a New Republic essay  that, as will become evident, is probably better understood as a manifestation of the psychological phenomenon of projection than as legal or political analysis. Posner levels two misguided criticisms against what he imagines the Buchanan/Dorf approach to be.  First, he ignores the reasons we gave for the conclusion that when a President spends less mon...

By Mike Dorf My latest Verdict column explores how our system of separation of powers created the opening for the Tea Party faction of the Republican Party to exercise a kind of minority rule.  The basic story line is this: The Constitution was designed to work without political parties.  When political parties arose, they crashed our system for electing Presidents.  The 12th Amendment more or less fixed that problem but we have never had a real fix for Congress--where parties interact with separation of powers to create either too few checks and balances (during periods of unified government) or too many (during periods of divided government).  I credit a paper by Daryl Levinson and Rick Pildes for the latter half of that observation. I said all I want to say about separation of powers and parties in the Verdict  column.  Here I want to explore another aspect of the current crisis--one that arises out of a question that a number of people have posed f...

-- Posted by Neil H. Buchanan As we approach the drop-dead date on the debt ceiling, most of the worry has revolved around the effects on financial markets, and then on the broader economy through the contractionary effects of reduced government spending and collapsing confidence. Paul Krugman catches the vibe with a short blog post appropriately titled " Hitting the Ceiling: Disastrous or Utterly Disastrous? " in which he summarizes a research memo from Goldman Sachs that predicts a deep recession, even if there is not a complete collapse of the financial markets. Again, however, the notion of a financial market collapse can seem rather abstract.  What does it mean for you and me, if the stock and bond markets go into a swoon?  Sure, everyone who invests in those markets (directly or indirectly) would suffer paper losses, with their various retirement accounts and investment portfolios dropping in value.  But what if you are not invested in those markets (at all, or...

-- Posted by Neil H. Buchanan Readers who have not yet seen Professor Dorf's post yesterday , in which he responded to yet another round of off-the-cuff non-arguments to our debt ceiling scholarship, as reported in a New York Times article yesterday morning, should read it immediately.  I am happy to associate myself with every word. Meanwhile, I added my responses to the NYT piece in an invited post on the National Constitution Center's Constitution Daily blog.  That piece can be found here .  Enjoy the weekend!

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...