My regular readers (assuming it’s possible to be a “regular” reader of such an irregular blog) know my concern about the expansion of executive power in the U.S. I see evidence all around, which suggests either that I’m right or that I’m a paranoid conspiracy theorist. In favor of my grip on reality, though, I’m not this guy. I don’t think Obama’s about to stage a coup, constitutional or otherwise, nor do I think–like a student I talked to on election night 2008–that Obama’s planning to impose martial law on the country. Instead, I think we have been edging stepwise along a path of ever greater executive power and congressional abdication of their own authority and their constitutional responsibility to keep the executive in check.
Today’s case in point? Democratic congressmembers encouraging the president to keep the “14th Amendment solution” to the debt ceiling on the table. For those who’ve forgotten the last go-round on the debt ceiling, here’s the relevant text.
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.
According to some this means the president has authority to prevent default by issuing new debt even when Congress refuses to authorize it, because not to do so brings the public debt into question. The fact that there is no directive about the executive, no grant of power, is no real stumbling block because the executive is presumed to have “inherent” emergency powers.
This is the “the Constitution is not a suicide pact” argument. While that is true enough–or perhaps better, is simply a truism–suicide is not the actual standard used, just harm to the country, as Chicago law professor Eric Posner argues.
“The president has inherent emergency powers,” he said. “It has long been understood that the president should act to protect the country.”
Does the executive actually have inherent emergency powers? It’s certainly not in the Constitution, and frankly I fear the idea enough I’d love to argue against it. But really, almost no serious constitutional scholar denies it, and the idea has foundations at least as far back as Hamilton’s Federalist 70, and he ties the concept into the very nature of executive power.
There is an idea, which is not without its advocates, that a vigorous executive is inconsistent with the genius of republican government…[But] [e]very man the least conversant in Roman history knows how often that republic was obliged to take refuge in the power of a single man, under the formidable title of dictator…
But Hamilton specified that the dictator was a response to
the intrigues of ambitious individuals who aspired to the tyranny, and the seditions of whole classes of the community whose conduct threatened the existence of all government, as [well as] against the invasions of external enemies who menaced the conquest and destruction of Rome.
The inherent emergency–dictatorial–powers of the executive, then, are truly about avoiding national suicide, about existential threats. No actual constitutional provision is necessary in order to trigger this power, and the violation of a particular constitutional provision is in itself unlikely to be sufficient to trigger it. Would default on the debt do great harm? Economically, it might. Does it pose an existential threat to the U.S.? It’s hard to spin a plausible theory there (maybe something about the Chinese calling in the debt they hold, and because we can’t pay we have to deed the White House and Capitol to them).
And yet we see not only law professors suggesting the inherent emergency executive powers are allowable to deal with non-existential threats, we see members of the legislative branch, the one that is supposed to keep the executive in check, calling for him to use these powers. And they are doing so because of their own branch’s incapacity to do its clear duty.
When your legal scholars argue that the executive has authority to override the legislative branch, and leaders of the legislative branch urge the executive to override them, is it really paranoid to worry that the executive branch is no longer effectively checked and balanced?