Seth Barrett Tillman on the Debt Ceiling

Regarding this post, Seth Barrett Tillman writes:

There is a new view that the President has authority to sell newly issued government debt, absent congressional authority (i.e., Congress’s raising the debt ceiling).
Professor Epps, Dorf, and Buchanan et al. may be right or they be wrong about the constitutional point. (Disclosure: My own view is that they are wrong.) But it does not matter if they are right or wrong. The Constitution is not the relevant body of law.

The relevant body of law is fiduciary duty law. No trustee, director, or officer of a primary dealer (the organisations which actually buy newly issued federal debt) would touch debt issued by the President absent either (1) congressional consent, or (2) Supreme Court approval of the practice. Any such purchase by a primary dealer would be clear violation of its fiduciary duty of care to its stockholders. Full stop. Ex hypothesi, Congress will not have consented: that’s why the President’s action would be unilateral. Likewise, judicial approval could only happen (long) after the Treasury sells the debt. To sell the debt, the Government would have to agree to an astronomical premium, and that would leave the government much worse off than not selling debt at all.

Epps, Dorf, Buchanan and other make an interesting theoretical point (like some which I have made!), but wholly impractical point (ditto). The President cannot sell debt on the credit of the United States absent congressional authority. It is a matter of private law, not public/constitutional law.

Very well put.  And it reminds me of a further point regarding Section 4 that I intended to make yesterday.  Far from supporting a unilateral presidential power to issue debt, Section 4 points the opposite direction.  It says (emphasis added):

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Before You Rejoice

Before you rejoice that the government has seized an alleged terrorist in Libya who was indicted for planning the notorious 1998 U.S. embassy bombings in Africa, before you join the House of Representatives in a standing ovation for the Capitol Hill Police who killed a woman whose car struck a White House fence and who then drove away at a high speed, and before you commend the New York Police Department for quickly getting to the bottom of an alleged assault by a motorcycle gang that tormented a young family on a city street, please give some thought to the rule of law.

Last weekend, a team of Navy SEALs kidnapped a Libyan, Abu Anas al-Libi, off of a public street in Tripoli. The Navy men did not have a warrant for his arrest, did not have the permission of the local authorities or the Libyan government to carry out this kidnapping, and were unlawfully present bearing arms in public in Libya. Many of al-Libi’s alleged accomplices already had been arrested, prosecuted and convicted in the U.S. The U.S. could have sought his extradition, as it did with some of them, had President Obama not bombed the American-friendly government of Col. Moammar Gadhafi out of existence, without a congressional declaration of war.

Obama apologists have praised this maneuver as a bloodless way to obtain justice without using drones to kill. (How low we have sunk when Obama can be praised for not executing someone with a drone.) Secretary of State John Kerry, acknowledging that al-Libi is innocent until proved guilty, has claimed that the rule of law was followed here because he will be brought to a civilian U.S. court for trial. Former George W. Bush administration Attorney General Michael Mukasey claimed that because the embassy bombings constituted an act of war, the kidnapping of al-Libi was a lawful wartime assault, and he should be tried before a military tribunal.

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Companies Ask For NSA Transparency, DOJ Rejects Them

For there is nothing hidden that will not be disclosed, and nothing concealed that will not be known or brought out into the open. – Jesus Christ

The U.S. Department of Justice denied a request by tech companies Google, Microsoft, Yahoo, Facebook, and Linkedln to allow them to disclose more information about the frequency with which they are contacted by the U.S. government to give up user data under the Foreign Intelligence Surveillance Act. (More info here)

The DOJ claims that giving these companies the ability to tell the public more about requests from federal organizations like the NSA would pose a risk to national security.

Of course.

So, letting Americans know about its own government spying on them would set us up for real trouble huh? How about the threat to national security posed by the government itself? Shouldn’t the Constitution and transparency be more important? After all, you are four times more likely to be killed by a lightning bolt than by a terror attack.

Patrick Henry understood that government must remain transparent.

“The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them.”

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Border Patrol Loaning Predator Drones to Military, State, and Local Police

Think state and local law enforcement aren’t watching you with high-tech federally-owned drones? Think again.

In a new post, the Electronic Frontier Foundation (EFF) reports that Customs and Border Protection (CBP), a division of the Department of Homeland Security, released an updated list of “times the agency has flown its Predator drones on behalf of other agencies — 500 flights in total over a three-year period.”

Some of the more interesting revelations contained in the report — obtained by EFF as a result of a Freedom of Information Act (FOIA) lawsuit — include the fact that CBP drones flew more than 100 missions on behalf of the Department of Justice.

As the EFF story indicates, this level of cooperation between CBP and the Department of Justice “is in direct contradiction to a recently released DOJ Office of Inspector General (OIG) Report (pdf) that stated DHS had flown its drones on only two occasions for DOJ law enforcement components.”

Although many of the agencies borrowing CBP drones were revealed in earlier lists, there are a few new entries: “Grand Forks SWAT, the North Dakota Narcotics Task Force, the Bureau of Indian Affairs, the Arizona Department of Public Safety, the Minnesota Drug Task Force, and several branches of the military.”

Read that again: “Several branches of the military” are flying drone missions above the United States. For what lawful purpose could the armed forces be conducting such operations domestically? Furthermore, the likelihood is high that such activities run afoul of the Posse Comitatus Act, which prohibits the U.S. military from performing domestic law-enforcement duties.

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Oregon Governor Signs Anti-Drone Bill Into Law

On July 29, Oregon Governor John Kitzhaber (D) signed the Anti-Drone Spying bill (HB2710) into law.

The new law will require law enforcement to obtain a warrant for drone use in all but a few cases.

Provides that drones may be used by law enforcement agency for purpose of surveillance of persons only pursuant to a warrant or in emergency circumstances. Provides that law enforcement agencies may use drones to intercept communications only as provided under laws relating to wiretaps other interceptions of communications. Requires destruction of images and other information acquired by use of drone within 30 days.

The bill also outlaws weaponized drones.

Representative John Huffman (R ) said, “I feel that we were able to craft our bill to get ahead of the curve and ensure people’s rights were protected — but also to let Insitu and other companies in the industry know that we are willing to work with them.”

The House passed its version of the bill 52-7 on April 15. The Senate passed the amended version 23-5 on June 10th. The differences between the two bills were resolved in committee, and it was sent to the governor for his signature.

While the exceptions for drone use raise legitimate concerns, as things existed,  Oregonians had no protections against drone surveillance. Law enforcement agencies in Oregon could use drones any time, anywhere, with absolutely no parameters. Under the new law, drone use will be extremely limited and circumscribed.

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Step Two: California vs NDAA Indefinite Detention

Now that the dust has settled a bit after Jerry Brown signed AB351 into law, it’s important to ask, what’s next?

If you thought the work was done and California would be “indefinite-detention” free, you thought wrong. The passage of the California Liberty Preservation Act was an important first step towards the nullification of federal indefinite detention practices in the state, but not the last one.

This advice from Samuel Adams probably sums it up best:

“Instead of sitting down satisfied with the efforts we have already made, which is the wish of our enemies, the necessity of the times, more than ever, calls for our utmost circumspection, deliberation, fortitude, and perseverance.”

The enemies of liberty will not rest, and neither can we.

CALIFORNIA LIBERTY PRESERVATION ACT

AB351 now makes it “state policy” to reject “indefinite detention” powers from the federal government.   It reads, in part:

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NullifyNSA: Michael Boldin on the Scott Horton Show

Michael Boldin, founder and executive director of the Tenth Amendment Center, discusses the states’ rights approach to fighting NSA spying on Americans; the unlikely coalition that pushed through the NDAA-defying California Liberty Preservation Act (AB-351); and using anti-commandeering court precedents to withhold water and power from NSA data centers in Utah and Texas.

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Strong City, Kansas Joins the Fight to Protect the Second Amendment

As we’ve reported previously: in August, Herndon, KS Mayor Kenny Chartier sent an email to “[every] municipality, city and town in the state of Kansas [with] an e-mail address,” urging them to pass ordinances similar to Herndon’s in support of the Second Amendment Protection Act, which was signed into law by Governor Brownback in April. Three cities have since answered that call: Muscotah, Easton, and most recently, Strong City.

At their September 10 meeting, the Strong City city council passed the Right to Bear Arms Ordinance into law with a margin of 5-0.

“No agency of the City of Strong City, KS, or person in the employ of the City of Strong City, KS shall enforce, provide material support for, or participate in any way in the enforcement of any act, law, treaty, order, rule or regulation of the government of the United States regarding personal firearms, firearm accessories, or ammunition within the Boundary of this City of Strong City, KS.” —Right to Bear Arms Ordinance, Strong City, KS

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