My “Amicus Brief” in Bond v. United States

In sum, there are at least two ways the Court in Bond can accommodate federalism without undermining national foreign policy. It can construe ambiguous treaties not to reach purely local conduct. And it can require Congress to make a plausible showing that federal regulation of local conduct is needed to prevent material breach of treaty obligations. Either approach would allow Bond to win the case without undermining national treaty power.

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Ron Paul on Nullification and the Fed

I’ve been paying attention to what Congressman Dr. Ron Paul has to say for nearly two decades. In that time, I’ve never heard him exaggerate our circumstances. So, when he alerts us that he is anticipating a “big, big collapse” of our monetary system, it’s time to take heed. What does Paul Say we should…

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Not raising the debt limit = balancing the budget

Not raising the debt limit is simply running a balanced budget.

Yes, that’s right: The President and Congress may have to balance the federal budget in the next few days! Horrors!

Let’s get some clarity here. When the federal government hits the debt limit it does NOT mean that it can’t borrow or that it can’t pay existing debts. It just means it cannot continue to run a deficit. Spending becomes limited by revenue, and existing debt may be replaced by new debt. The government just can’t add MORE debt.

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Banging the Drum for Default

Originally published at American Thinker

There’s been so much malarkey meted out by the media about the budget C.R., the government shutdown, and the debt ceiling that the average American can easily lose sight of the real issue, which is the federal debt. Even certain honest, trusted members of the media trot out “default” as though it were synonymous with not raising the debt ceiling by Oct. 17.

Actually, default is not paying the interest/principle on what one has borrowed. Current federal revenue is way more than enough to easily pay what we owe on federal notes, bills and bonds.

If the feds do indeed have enough revenue pouring in to meet their obligations, then actual default would be an act of volition, a decision by the president. The president would have decided to squander the full faith and credit of the nation. Such an action would be an impeachable offense.

The president tells us that the deficit has been cut in half. He’s right, but that’s only because it’s come down from astronomical levels. Despite having fallen, the deficit for fiscal 2013 is still far higher than any pre-Obama deficit. Indeed, the six deficits since the Democrats took over Congress in Jan. 2007 are by far the largest in history.

Two big reasons for the smaller deficit for the fiscal year that just ended are tax hikes and spending cuts; specifically, the income tax rate hikes on the wealthy, the end of the payroll tax holiday, and sequestration. But the Democrats want to end sequestration. If that were to happen with no off-setting cuts elsewhere, the deficit would be that much worse next year. (It may be worse anyway, due to the rollout of ObamaCare.) 

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Government shutdown and debt ceiling FAQ

by Jon Roland, Constitution Society

There have been a number of Frequently Asked Questions pages posted on the Net concerning the government “shutdown” and debt ceiling, which provide commonly conceived “answers”, but it seems fitting to provide some more constitutionally enlightened answers to some of those questions:

  1. If there is no congressional appropriation, how can the government keep spending money on “essential” operations? Constitutionally, it can’t. There is no constitutional exception for “essential” operations. If government complied with the Constitution, it would have to shut down all spending and proceed entirely using unpaid volunteers, as it did in the beginning.
  2. How can some spending be outside the appropriation process? Constitutionally it can’t. It is done on the rationalization that the Constitution does not explicitly forbid setting up “independent” agencies that may be “self-funded” from their own taxes or fees, or forbid multi-year appropriations for other than the Army, but the Constitution doesn’t authorize those things, either, and one cannot logically infer a power from the omission of a prohibition on its exercise. The design established by the Constitution requires all revenues go into the Treasury, and all disbursements to be made under appropriations that may not extend beyond the terms of Congress, which are two year periods.
  3. Why can’t government workers volunteer? Constitutionally, there is no authority to stop them from doing so, although there is a 19th century criminal statute that forbids it. The statute could constitutionally forbid volunteers to use government-owned assets, but the only authority to forbid voluntary action would be to fire them, and they could then volunteer as non-employees using their own resources. Of course, if government prosecutors are “furloughed” there would be no one to enforce the statute. Somehow, one suspects it is a dead letter.
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Sean Wilentz Plays John Yoo on the Debt Ceiling (with my Response)

In the New York Times, Princeton historian Sean Wilentz: Obama and the Debt (arguing that refusing to raise the debt ceiling “would violate [a] ‘fundamental principle’ of the Constitution” and that the President “in times of national crisis, can invoke emergency power to protect the Constitution” by, in this case, borrowing on his own authority.)

(Thanks to Michael Perry for the pointer).

I have some comments, none of them complimentary.  So I’ll start by saying that Professor Wilentz is a great historian and everyone should, at minimum, read his Bancroft-award-winning The Rise of American Democracy: From Jefferson to Lincoln (W.W. Norton, 2006).

Now for the comments:

1.  Wilentz asserts the meaning of Section 4 of the Fourteenth Amendment, chiefly by looking at drafting and ratifying history, prominently quoting Republican leader Benjamin Wade, and referring to the beliefs and motivations of other principal drafters.  In sum, this is the original meaning of the Fourteenth Amendment.  Apparently Sean Wilentz is an originalist!

But wait, I thought historians denied the very foundations of originalism, claiming that history cannot be used to establish fixed meanings.  Is there actually some deep split among leading historians regarding the use of history?  (See alsohere, in which the great historian Joseph Ellis appears certain of the historical meaning of the Second Amendment).  Or do historians’ doubts about the coherence of originalism only apply when it’s done by law professors, or by conservatives?

2.  Professor Wilentz’s history doesn’t show what he thinks it shows.

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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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A Follow-up on the Guarantee Clause

Regarding this post on the guarantee clause challenge to Colorado’s anti-tax initiative, Derek Muller writes:

I had two quick follow-ups, if you’re interested in exploring further. First, don’t you think that “the United States” might include the federal courts of the United States? That’s why I’m reluctant to peg nonjusticiability on the first Baker factor. Second, do you have any thoughts on Colorado’s claim that the Guarantee Clause cannot be enforced against the state governor, but must be enforced (if at all) against “the United States”?

My thoughts:  (1) In my initial post, I argued that the phrasing of the guarantee clause (“The United States shall guarantee to every State in the Union a Republican Form of Government”) indicates a textual commitment to the political branches, thus making the Colorado case a non-justiciable political question.  Professor Muller is right that the best response is that the federal courts are part of “the United States” and thus share the duty of enforcing the guarantee.  I’m not persuaded for several reasons.

First, the reference to “the United States” seems like a direction to the United States as a whole, in its sovereign capacity, not a direction to each individual component of the U.S. government.  That is similarly true of the word “guarantee”, which is not typically used to describe what courts do. And that conclusion seems particularly appropriate because the clause is potentially very intrusive on federalism; read broadly, it would make the federal courts overseers of the political systems of the states.  This is not likely a role the framers envisioned for the federal courts; rather, it is much more likely that they designed the guarantee as a mechanism that required the participation of the states collectively (through the Senate).

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Does Colorado Have a Republican Form of Government?

At the Excess of Democracy blog, Derek Muller (Pepperdine Law) has an interesting post on Kerr v. Hickenlooper, the case claiming that Colorado lacks a republican form of government, as required by Article 4, Section 4 (the guarantee clause).  As he explains:

In 1992, Colorado voters, by initiative, enacted a “Taxpayer Bill of Rights” (TABOR) that prohibits the legislature from raising tax rates or imposing new taxes without voter approval. Plaintiffs recently sued and claimed that the legislature had a kind of inherent right as a republican form of government to control tax increases.

The district court rejected defendant’s argument (at least as an initial matter) that claims under the guarantee clause are non-justiciable.  The Tenth Circuit heard oral argument last Monday.

Professor Muller thinks that the case is a non-justiciable political question.  I agree, but on somewhat different grounds.  He argues:

The second prong [of Baker v. Carr, a key political question precedent] … is salient: “a lack of judicially discoverable and manageable standards for resolving it.” Defining a “Republican Form of Government” is not an easy task, and certainly not one the judiciary has undertaken in over 200 years.

Further, the narrowness of the question weighs against examining the definition. The defendants who appealed note in their briefs that there are limited sit[u]ations in which it might be justiciable–such as if a state instituted a tyranny or a monarchy. But here, the question is whether the legislature has a right to raise taxes absent the popular vote of the people-and, perhaps as a prior question, whether the people can remove a delegated task of certain kinds of taxation from their representatives by initiative and restore it to themselves.

I disagree.  The fact that a question is hard should not make it non-justiciable.  Muller quotes a law professors’ amicus brief (written by some people with whom I often don’t agree, including Erwin Chemerinsky):

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