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Tuesday, July 26, 2011

"Watching the Cars Crash": the Constitution's Place in this Summer's Debt Limit Discussions

What role has the Constitution played in the persistent argument over raising the debt ceiling? There is the Republican push for a constitutional amendment requiring a balanced budget (which I will address in a later post) and the Democratic argument, now abandoned, that the Fourteenth amendment makes it unnecessary for the President to get Congressional approval on raising the debt ceiling since, as section four of that amendment reads, "the validity of the public debt of the United States, authorized by law, including debts incurred for the payments of pension and bounties for service in suppressing insurrection or rebellion shall not be questioned."

This Democratic position created one of the more theatrical moments of the months-long debate when, at a Politico breakfast attended by dozens of reporters earlier in the summer, Treasury Secretary Timothy Geithner waved a copy of the Constitution and asked, rhetorically, of the president's Republican opponents: "Have you read the Fourteenth Amendment?" The statement surprised many in the audience since it was thought that any attempt to shut Congress out of the process would be politically disastrous, and, indeed, despite former President Bill Clinton chiming in to support the position, last Friday President Obama took it off the table. “I have talked to my lawyers,” said Obama, of the Fourteenth Amendment reasoning. “They are not persuaded that that is a winning argument.”

Why? Truth is, no one knows quite how to understand the fourth section of the Fourteenth Amendment since there is no doctrine to consult. The Court has not addressed the issue. "It's not clear, it's not been tested," said Jonathan Turley of George Washington University Law Center's Jonathan Turley to Keith Olbermann on Olbermann's Current TV program, "Countdown." "For a law professor who comes to watch the cars crash, it could be exciting. But I'm not too sure it's good for the country."

That last argument – what is “good for the country” – would almost certainly be part of any federal court decision on this issue and it would likely look at it this way: no matter how the language reads and no matter how we understand it to be applied in this circumstance, the size, scope, and particulars of the national budget are without a doubt a “political question.” In other words, a decision best left to the branches elected by the people, not the judiciary.

High school civics classes may leave us with the impression that the American system of government is split between three co-equal branches. But in fact, there is a priority to the two political branches – the executive and the Congress – which the Courts have traditionally respected as superior on many matters. Yes, constitutional doctrine does provide the judiciary with the power to overturn acts of Congress as inconsistent with the Constitution, but especially in areas, like the national budget, where the Constitution clearly establishes the responsibility for action with the political branches, the Courts, as the least democratic branch, are loath to intervene.

There is even a hierarchy between the two political branches with Congress holding a slight edge. Consider the Court’s landmark 1952 decision in the Steel Seizure case, also known as Youngstown Sheet and Tube Company v. Sawyer. The case, which involved President Harry Truman’s decision to take over the steel industry when it was in the midst of a labor dispute that threatened to stall production and create economic instability, ended with a stinging rebuke of the president and the establishment of a formula of sorts by which to judge the relative power positions held by these often competing branches of government. Justice Hugo Black wrote the Majority opinion, siding with the steel industry. But it was Justice Robert Jackson’s concurrence which carried forth as a guiding principle. Jackson said that there are three categories of Congressional-Executive disputes: those where the president is attempting to use power expressing or implicitly established by Congress; those where Congress has said nothing on the issue; and those where Congress has been clearly in opposition to the president. These, he said, should be seen in descending order of legitimacy. In other words, the president needs Congress’s assent or, barring that, silence to act within the scope of constitutional authority.

This Congress – our Congress, that is – may not, as of today, have spoken on the issue of raising the debt ceiling, but it has been anything but silent, suggesting, in Justice Jackson’s formula, that not only is the debt ceiling a “political issue,” but the president does not have the authority here to act alone. For an executive of the world's most powerful nation, that can be bitter medicine. Back in 1952, when the Court told Harry Truman to relinquish his hold over the steel industry, the combative president was stunned. Later that afternoon, Justice Hugo Black invited him over to his home for a drink. “Hugo,” the president reportedly said to his host, “I don’t much care for your law, by golly this bourbon is good.”


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