Saturday, October 12, 2013

Sean Wilentz and Jack Balkin on the debt ceiling crisis and the 14th Amendment

Sean Witlentz gives some historical perspective on Obama and the Debt New York Times 10/07/2013, in which he argues that the Republicans' threat to throw the United States government into default amounts to "proposing a blatant violation of the 14th Amendment, which states that 'the validity of the public debt of the United States, authorized by law' is sacrosanct and 'shall not be questioned.'"

Jack Balkin challenges part of his argument in Sean Wilentz on the Debt Ceiling Crisis: Imprudent Advice Balkinization 10/08/2013, arguing that "although Wilentz's history may be sound, his normative prescriptions are not."

Specifically, the question is whether the President could legitimately invoke the 14th Amendment to ignore the debt ceiling. Wilentz says yes, Balkin no.

Wilentz argues that debt-related language in the 14th Amendment aimed "to prevent precisely the abuses that the current House Republicans blithely condone." While "precisely" is a tricky word to use for such comparisons, I'm inclined to agree with him. He describes some of the political and legislative history involved:

Congress passed the 14th Amendment and sent it to the states for ratification in June 1866. Its section on the public debt began as an effort to ensure that the government would not be liable for debts accrued by the defeated Confederacy, but also to ensure that its own debt would be honored.

That was important because conservative Northern Democrats, many of whom had sympathized with the Confederacy, were in a position to obstruct or deny repayment on the full value of the public debt by paying creditors in depreciated paper money, or "greenbacks." This effective repudiation of obligations already accrued — to, among others, hundreds of thousands of Union pensioners and widows, as well as investors — would destroy confidence in the government and endanger the economy.

As the wording of the amendment evolved during the Congressional debate, the principle of the debt’s inviolability became a general proposition, applicable not just to the Civil War debt but to all future accrued debts of the United States. The Republican Senate leader, Benjamin F. Wade of Ohio, declared that by placing the debt "under the guardianship of the Constitution," investors would be spared from being "subject to the varying majorities which may arise in Congress." [my emphasis]
The strongest argument Balkin makes is this one:

... by acknowledging in advance that he will disregard the debt ceiling, Obama gives Republicans no reason to act responsibly in a debt ceiling crisis. They can happily refuse to budge knowing that Obama will bail them out and subject himself to impeachment. Even if Obama planned an emergency action along the lines of what Wilentz suggests, it would be foolhardy for him to announce it in advance. His proper strategy is to insist that the 14th Amendment does not give him the power to raise the debt ceiling without Congressional authorization, which is also the correct legal answer.
There he's considering what Wilentz recommends that Obama do immediately:

Surely the lawyers advising and defending the White House, let alone the president, know as much. Refraining from stating this loudly and clearly, and allowing Congress to slip off the hook, has been a puzzling and self-defeating strategy, leading to the crippling sequester and the politics of chronic debt-ceiling crisis. More important, by failing to clarify the constitutional principles involved, the administration has neglected to do its utmost to defend the Constitution.
I'm inclined to agree with Balkin on the negotiating strategy. My own preference would be for Obama to really refuse to negotiate with the Republicans, even refuse to negotiate about negotiating, and continue to insist that the Reps need to raise the debt ceiling and re-open the government. He could then wait for a couple of weeks as the Reps' poll ratings go through the floor, until a day in which the stock markets go into a serious panic. After the close of the markets that day, he would announce that he's had a trillion-dollar platinum coin minted that he will use to keep paying the bills, explaining, "I had to do this because the Lord of the Flies Republicans were determined to destroy the world economy. Again."

If I actually expected that Obama were willing and able to pull off something like that, I would agree with Balkin. But based on his negotiating record so far, I would actually feel more comfortable if he were to go with an earlier declaration of an Executive debt ceiling solution.

Balkin seems to think that Obama can and should avoid having the Republicans impeach him. But at this point, the Republicans in Congress and the broader "conservative movement" are certainly acting like their in Lord of the Flies mode. So I doubt Obama has much actual influence over whether the Reps impeach him or not. His basic stance on impeachment ought to be more along the lines of, "Bring it on, Cracker Party!" Also an all-but-unimaginable position for Obama the Great Bipartisan to take.

As the countdown to a US debt default gets closer to d-day, the gameboard is shifting more rapidly every day. As of yesterday, here are the views presented by Sleepy Mark Shields and David "Bobo" Brooks on the PBS Newhour Political Wrap section on 10/11/2013, Shields and Brooks on shutdown's 'tectonic' effect for Republicans:

Both are in their default mode of giving their own variations on conventional wisdom. Sleepy Mark rambles about the Erie Canal and land-grant colleges. Bobo gives his own calm-voice spin on how this isn't really so bad for the Republicans. Bobo's "tell" is that when he's really delivering a version of Republican ideology comically divorced from the real world, he assumes a soft, calm, imminently reasonable tone. He keeps that tone through most of this segment.

Bobo quote of the day: "It's not, like, a transformational news event." (after 9:50 in the video; they don't seem to have the transcript up as of this writing.)

At least Obama is still holding out for the Republicans to act like minimally responsible elected officials. As Billy House et al report in White House Rejects House Offer; Hope for Fiscal Deal Now Lies in Senate National Journal 10/12/2013:

Many House Republicans were openly angry following Saturday morning's meeting. They accused the White House of not only misleading House Republicans, but of pitting House and Senate Republicans against one another.

Rep. Tom Price, R-Ga., who also said the most recent House Republican offer had fallen through, described it as "a short-term debt limit extension with a budget process, and specific negotiations on reopening the government."

But Obama informed Boehner last night that he wasn't interested.

In the Senate, talks are in the hands of Majority Leader Harry Reid and Minority Leader Mitch McConnell. "At the end of the day, what we all are supporting is the effort that's under way between Senator McConnell and Reid," said Sen. Bob Corker, R-Tenn.
The Fort Sumter Party no doubt feels that it's a victory for them that the President even held his supposedly non-negotiation negotiations with them. But you can understand how he doesn't feel that the Republicans have been entirely reliable negotiating partners:

This is also an interesting snippet of Republican opinion that they provide:

"The challenge that we have here, very simply, is that the Republicans have control of the House, the Democrats have control of the Senate, the White House and the media," said Rep. Trent Franks, R-Ariz. "The equation there is very asymmetric one for House leadership."

"I'm convinced that, given that equation, that we're doing the best we can," Franks said. "And there's a fifth issue—and that [is] we're dealing with a president who unfortunately doesn't hold himself … to the truth or his own word. That's my conviction."

Rep. Raul Labrador, R-Idaho, said, "I haven't been more proud of my leadership than I've been over the last three weeks. I think they're holding strong and they feel that the Senate Republicans are undermining their negotiations."

Said Price: "I'm just astounded that the president can't take yes for an answer. It really is remarkable that he refuses to accept basically what was his offer initially. So we'll see. Hopefully he'll wake up this morning a little smarter and a little more observant of what has actually been proposed."

Meanwhile, others said they were going home to their districts until the House is scheduled to return to session on Monday, subject to a callback from House leaders.

"I have not seen my 2-year-old for two weeks," said freshman Rep. Trey Radel, R-Fla.
The punchlines to that just write themselves!

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