Congressional Abdication

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?

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About J@m3z Aitch

J@m3z Aitch is a two-bit college professor who'd rather be canoeing.
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14 Responses to Congressional Abdication

  1. Dr X says:

    I know the Supreme Court doesn’t want to get in the middle of a political dispute between the other branches, but it does seem there is a Constitutional obligation to raise the debt ceiling. Could members of Congress ask the Supreme Court to immediately address the case, to force a vote in the full House or even order that the debt ceiling be raised? Well they could ask, but could and would the court intervene? Maybe a temporary emergency order with an agreement to hear the case. I’m thinking of this as an alternative to president invoking emergency executive authority. I’d much prefer this approach.

  2. Dr X says:

    Does this situation present the possibility of a permanent judicial solution, an end to the requirement to raise the debt ceiling?

  3. pierrecorneille says:

    Dr. X,

    James would know better than I, but my guess is that the court would rule that the Congress would lack standing, especially if it’s a select number of congresspersons and not “Congress” itself. I’m not even sure if Congress qua Congress can go to the courts, although I suppose it can in some cases (e.g., subpoena powers). But if “Congress” itself appealed to the courts, then it wouldn’t have to, because it would just authorize the debt ceiling.

    I suppose someone who is owed an interest payment by the defaulted government could take the U.S. to court to compel the U.S. to pay the interest, perhaps based on the 14th amendment. In that case, I could see the courts discerning in the 14th a requirement to pay such interest on obligations already incurred by Congress. I’m not sure how realistic that type of case and outcome would be, but I imagine it is at least possible.

    But again, James would know this better than I.

  4. pierrecorneille says:

    James,

    I don’t necessarily disagree, but I’ll play statist’s advocate for a moment and suggest that as the constitution was agreed upon in large part in order to resolve a debt crisis, or at least with an understanding that its terms would make it easier to do so, then we might say that the government not paying its debts goes against the very purpose of the constitution. I’m not sure how far I’d want to carry that ball, but it might be a way to reason one’s way to that outcome.

  5. J@m3z Aitch says:

    Dr. X,
    Troublesome Frog and I discussed that a bit here. There’s more that could be said, but I’m kind of rusty on that area of constitutional law. If I can find time I’ll brush up.

  6. J@m3z Aitch says:

    Pierre,
    I wouldn’t disagree with that. But where I’d stick is that it doesn’t provide an executive mechanism for resolving the problem, and the idea that the executive has inherent authority to act in the absence of either constitutional or congressional authorization is a risky path. In the Steel Seizure case the Court rightly said those are the conditions when the oresident’s power is at its lowest ebb.

  7. Troublesome Frog says:

    Let’s say Obama unilaterally says, “I’m not constrained by the debt limit. Suck it,” and then SCOTUS refuses every attempt to get the case in front of them? Where are we? My understanding is that the challengers have no mechanism to stop him at that point so in one sense, Obama’s statement is right. But it’s not just a legal question now. It’s a market question. Markets are going to have to price in the probability that SCOTUS will later rule that the bonds weren’t actually legal.

    It seems crazy for SCOTUS to punt on this for a few reasons:

    1) The potential damage is pretty serious. If the market doesn’t accept this new uncertain state of affairs, it’s a very big deal.
    2) This a super clear cut case of the two branches of government disagreeing over a very real constitutional question about who has the power to do what. It’s tailor made for SCOTUS. It’s not some argument over a minor technicality. It’s, like, their core job.
    3) It seems sticky enough that they can’t make it go away by refusing to hear the case. It’s a huge deal and there will be fights and fallout until the matter is settled. They’ll have to deal with it sooner or later, and dealing with it later is a lot more painful.

    If this problem hangs around long enough for the slow wheels of the Supreme Court to bear down on it, that’s a really strong indicatoin that the problem is here to stay and we need some sort of final word on it.

  8. J@m3z Aitch says:

    But it’s not just a legal question now. It’s a market question.

    Are you familiar with Charles Lindblom’s “The Market as Prison”?

  9. Murali says:

    New meme: Obama is going to deed DC to China for defaulting on the debt.

    You know that it started here!

  10. J@m3z Aitch says:

    I hate to say this, Murali, but I’ve actually seen variants of that out there. I couldn’t have thought that up on my own.

  11. Troublesome Frog says:

    Are you familiar with Charles Lindblom’s “The Market as Prison”?

    No, I wasn’t. Thanks for that.

  12. D.A. Ridgely says:

    Actually, the most clever quip I’ve heard emerging from these most recent congressional shenanigans is that the Washington Redskins have decided to drop the embarrassing word “Washington” from their name.

  13. Dr X says:

    D.A. Ridgely. Heh! I will be repeating that over the next few days.

  14. J@m3z Aitch says:

    Heh, I should blog that joke. Oh, wait.

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