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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William Jacobson on Natural Born Citizens

From earlier this month, William A. Jacobson (Legal Insurrection) has this impressive post — actually a long scholarly essay — on the eligibility clause: natural born Citizens: Marco Rubio, Bobby Jindal, Ted Cruz.  Short version: he thinks there is not a clear case for ineligibility of any of the three.  (Quite an impressive set of comments too, although the vitriol runs pretty high).

My thoughts are here (regarding Cruz).

As to Jindal and Rubio, I think there is no substantial textualist/originalist argument against their eligibility, as they were both both in the United States (although to non-citizen parents).  Whatever else it did, English law considered a “natural born subject” to be anyone (other than the child of a foreign ambassador or invader) born within English territory, without regard to the citizenship of the parents.  Absent evidence to the contrary, it seems appropriate to read the constitutional language in light of its English predecessor. 

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Nullification is no mere “Constitutional Right”

As Thomas Jefferson made clear when he wrote the Kentucky Resolutions in 1798, Nullification is not something that’s permitted to the people of the states by any document – it’s their natural right to resist oppressive power. From this, one could easily posit that this right is one that the federal government is barred from infringing under the 9th Amendment.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people

More on the 9th in a future power. Here’s Jefferson:

“that every State has a natural right in cases not within the compact to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them”

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From Drugs to Taxes, New Amendments Won’t Make a Difference

From talk show hosts to taxpayer defense organizations, a lot of people out there are justifiably sick over how our government is operating.  Many of them have proposed new Constitutional Amendments, either to reign in the power of the federal government, or to force it to exercise its constitutionally delegated powers and responsibilities.  It occurred to me while driving (I do a lot of thinking and praying behind the wheel), that the things these groups propose are why the Constitution was written in the first place – to define yet limit the powers of the federal government.

Congress, presidents past and present, and the Supreme Court have disregarded their Constitutional responsibilities and limitations on their authority for over a century.  If they fail to respect the Constitution and all the Amendments currently included in it, any proposed new Amendments, even if they got past 290 Representatives, 67 Senators and 38 state legislatures, will do nothing to restore one iota of our God-given freedoms.

In the year 1919, the 18th Amendment to the Constitution was ratified, which stated:

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David Barron and Martin Lederman on Congress’ Power to Limit War

In my post on Congress’ power to declare a limited war, I noted that the leading scholarship in support of Congress’ power is by Saikrishna Prakash (here).  I should also have added as well the outstanding two-part article “The Commander in Chief at the Lowest Ebb” by David Barron and Martin Lederman in the Harvard Law…

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The Original, Legal Meaning of the Constitution vs What They’ve Given us Today

Some people – including the former law instructor who now serves as President of the United States – believe that it is impossible to reconstruct the Constitution’s original meaning. As this book demonstrates, that view is substantially incorrect.

The Original Constitution fills a void that has existed for a long time—the need for a clear, complete, easy-to-read guide to what our Constitution really means.

Using evidence overlooked by nearly all other writers and assessing it with scrupulous objectivity, The Original Constitution tells you the truth about the Constitution. The Constitution the Founders gave us, that is, instead of the distorted version of it foisted upon us today.

In The Original Constitution you will learn:

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