Ravenman: Thanks for explicating. We still have a little further to travel though. The Gephardt Rule attaches debt-limit authority to the House budget, which occurs early in the process. If I understand this correctly, the Senate can still yammer on about the debt limit increase, but the rule at least curbs the House’s silliness. I mean the Gephardt Rule must have some impact, otherwise the House Republicans wouldn’t have set it aside twice, right?
I lacked the guts to draw this conclusion:
Legislature: Consistent with the laws of mathematics we now order you to break the law.
Executive: Really? Seriously? Snicker, giggle… BWAHAHAHAHAHA: All my dreams fulfilled! Ahem. Moving forward now: we shall henceforth withhold spending from the following Congressional districts…
I don’t think they can. The constitution doesn’t forbid congress from limiting the debt. It doesn’t forbid congress from spending money. It doesn’t forbid congress from raising revenue. Even if all 3 combine to violate the constitution, I don’t think the SCOTUS can throw any of them out. As far as I know, this is quite uncharted territory.
The constitution explicitly says we pay our debts.
If a law passed by Congress prevents that then congress loses. The Constitution trumps all.
Perhaps a better way to ask this is how you would reconcile Article 4 of the 14th Amendment with the debt limit if Congress refuses to raise the limit?
The elimination of the rule only means that the House has to vote on a stand-alone measure to increase government borrowing. The rule is intended to make it somewhat easier for the House to vote on debt increases, by providing political cover so someone can say, “Well, I didn’t want to vote for more debt, but I do support fully funding Social Security and defense spending, etc.” (Even though the budget resolution doesn’t directly do these things, those are reasons why someone might vote for a budget resolution.)
Republicans want to make increasing the debt a tougher issue to vote on, so they take away that political cover. Whether that is a short-sighted view that will make it more difficult to explain their own votes for the debt limit increase (which is inevitable) is another topic, of course.
But the Gephardt Rule really has no constitutional significance, a little bit of practical significance, and it almost completely of political significance.
Section 4 does not waive Art I, Sec 8. If it intended to, it should have said it. The long-standing legal axiom that laws say what they mean and mean what they say: since the 14th Amendment does not say that Congress no longer has the power to borrow on the credit of the United States, nor does it say that the President has gained the power to borrow on behalf of the United States, it means that the amendment did not intend to transfer any powers between the branches of government.
If it intended to take away Congress’ power over the debt, it would have said it. Instead, it just says that the debts, as authorized by law, are valid.
So does “valid” mean to you that what they meant was, “Yeah, we agree we owe you money but we’re not going to pay it”?
And if the amendment meant for us to pay our debts how does Art I, Sec 8 change that? Yes it is the place of Congress to issue debt. If Congress refuses to do that in order to pay its obligations then…what? You are in a position now of violating the constitution of the United States. Since congress has the ability to issue debt and the 14th says we pay our debt then congress should be compelled to issue debt to pay the debt in comportment with the constitution. If not have the president instruct the Treasury to pay the bills. If not him have the SCOTUS instruct the president to do it till congress gets its shit together.
How’s this? The Treasury Secretary should faithfully carry out the laws of the United States. Where they conflict with the laws of arithmetic, the Secretary should first finagle, then present his interpreted resolution to the Republican House with some lead time. If Congress does not respond with the appropriate legislation, the Secretary should carry out his plan, cognizant that whatever he does will be challenged in court.
If the Treasury Secretary decides to issue extra debt, he should consider giving it short maturities, so that future administrations don’t have the option of claiming that they can renege on it, consistent with the Constitution’s mandate that US Debt repayment be beyond question.
While the Treasury Secretary is trying to cover his ass it remains the congress has passed nothing to authorize him to do what you suggest.
If it comes to it (and honestly no way it will…Congress does NOT want this constitutional fight cuz they will lose but lets pretend they do) it will be interesting to see what the Treasury Secretary will do when ordered by the president.
Not an envious position to be in. He’ll earn his salary that day.
But he can say Congress did authorize him to spend money - in fact not only authorized but ordered him to do it. Look at Social Security, for example - Congress never said that sending out those checks was optional and the Treasury Secretary could choose not to do it. It’s his job to pay that money.
A law providing for an expenditure is not the same as a law providing for revenue. The authority to spend money is not the authority to raise money. Please see my previous posts on the budget process.
That’s the whole point. But the central issue is that a law providing for an expenditure is still a law. If Congress enacts a law telling the Treasury Department to spend some money on something and the Treasury Department doesn’t do it, it’s breaking the law.
I said above how the Republicans will be quick to accuse the Obama administration of breaking the law if it tries to borrow money. The Republicans will be equally quick to accuse the Obama administration of illegally refusing to pay poor widows and orphans the money they’re entitled to if it doesn’t mail out the checks.
Even though appropriations are law, I am not sure that it would be “breaking the law” if the Executive Branch failed to spend money that isn’t there to spend. The Antideficiency Act prohibits the expenditure of funds that are not available. In fact, there are criminal penalties for doing so.
I am not sure to what extent the Antideficiency Act prohibits the expenditure of funds if the treasury were literally empty, but to the extent that a law directs the expenditure of funds, and the Antideficiency Act prohibits the expenditure of funds that are not available, I would think that the Antideficiency Act would control.
No, it sort of works. The key part is that the Treasury Secretary gives advanced notice of what he will do, but not too much advanced notice. In effect, Congress has ordered him to break the law. So he does so, but outlines his logic and gives Congress opportunity to provide formal guidance. That’s basically what Rubin did in 1995 and Gingrich blinked.
As Little Nemo points out though, Republican hysteria has gone up a couple of notches since then.
Honestly the whole thing is a legal impossibility.
Congress may put the Executive Branch (president, Treasury in this case) into a predicament where they break the law no matter what they do.
The only smart answer to this is to appeal to the Supreme Court. They are the folks who can make a call and not be punished for it.
I seriously doubt the SCOTUS, even this one, will let the full faith and credit of the US be torpedoed and crash the US economy and probably the global economy. They’ll find a way to preserve the ability of the US to service its debt.
If they don’t we’ve got big problems.
ETA: There is no freaking way Congress will let it get this far. They will be damaged hugely if they try (for this I am not regarding their party).
Professor Tribe believes that the Executive would be obliged to prioritize expenditures.
From his op ed at the NYT:
"The Constitution grants only Congress — not the president — the power “to borrow money on the credit of the United States.” Nothing in the 14th Amendment or in any other constitutional provision suggests that the president may usurp legislative power to prevent a violation of the Constitution. "
So Tribe says the Prez can’t borrow without Congressional authorization.
At Volokh, Tribe opines that the Executive can’t tax. Among expenditures, top priorities are payment of interest and payment of judicial salaries, according to the constitution. Tribe would also disallow the distribution of funds so as, “to reward political allies and punish political adversaries.” He does not fully substantiate this last claim. Arguably the President is obliged to punish those who undermine the credit of the United States, whose validity, “shall not be questioned.” Or so I would maintain, but only if a Democrat is President. Otherwise not.
As you note, there’s a strong case to be made that the Treasury Dept isn’t actually breaking the law due to the circumstances involved.
But what I posted was that they would be accused of breaking the law. That’s what seems to be the real point of all this - the Republicans in Congress are screwing up the country in an attempt to make the Obama administration look bad.
Does the fact that the 14th amendment makes the debt “valid” mean that it must be paid on time every time? Couldn’t the President just tell the bond holders that, “Yes, those are valid and we will repay you. We just can’t right now.”?
It is entirely plausible that Mr. Obama, who is himself an accomplished constitutional lawyer, is intentionally pushing for a situation in which someone with standing legitimately sues him in his official capacity, or his Treasury Secretary or the Treasurer of the U.S., for non-payment of a valid debt. This would in short order move the question before the Supreme Court.
Remember that the Republicans appear to be playing partisan politics with the debt ceiling – they have put Mr. Obama in an untenable situation, where he either violates the debt ceiling law or the various laws directing him to spend money oin program X or Y.
Now consider that the latest incarnation of the Four Horsemen – Justices Scalia, Roberts, Thomas, and Alito – are all from the ‘sane’, fiscal conservative strain of Republicanism, as opposed to the Tea Partisan wing and the outright nutballs such as Birthers who have allied themselves with the Republicans. Faced with a suit the Solicitor General is willing to defend against a plaintiff with legitimate standing to sue, they need to resolve the Constitutional paradox in which Mr. Obama finds himself, either by asserting he is not permitted to pay a valid debt owing to the supremacy of the debt ceiling law or that he is required to pay the debts of the U.S., and when the debt ceiling statute conflicts with the Constitutional provision noted in the OP, it is being applied in an unconstitutional manner. Either way, he’s got a ruling – from Republicans! – that allows him to get out of that paradoxical situation.
As a factual matter, Obama should simply order the Treasury to continue issuing checks to cover bills and entitlements.
The legal justification I would argue for this is that the debt ceiling is for all practical purposes an accounting convenience, and has no legal meaning. Congress has ALREADY authorized the debt by authorizing the spending AND authorizing the revenue.
Please note I have no legal training, but this I would be making on August 3 if I was the President.