The Debt-Ceiling Problem, and How to Perpetuate It

As you probably noticed, we recently had another political crisis over the debt ceiling. When the government is spending more money than it takes in, it has to borrow the difference to pay the bills. By law, there's a limit to how much it can borrow. Since total government debt has been growing over time (except for a few years in the Clinton Administration) we periodically bump up against the limit and have to raise it to be able to pay the bills. The recent kerfuffle was over a Republican threat to refuse to raise the debt ceiling, thereby leaving us unable to pay the bills, unless various unrelated political demands were met.

The debt ceiling is in fact completely pointless, because it has no effect on what the government spends, only on whether it has enough cash on hand to pay the bills for what it spends. It's become the subject of two major political crises over the last two years. Can't we do something about it?

Now Eric Posner, a University of Chicago law professor, has written a column for Slate in which he suggests a solution to the debt ceiling problem: amend the Constitution.

[I]t would be easy enough to propose a constitutional amendment providing that “the president shall have the power to enforce Section 4 of the 14th Amendment.” If such a constitutional rule had been in place, President Obama could have announced that he would borrow as necessary to pay interest on the debt. 

As a solution to the problem, this is bizarre.  "Easy enough to propose," indeed. But as Posner notes, "Amending the Constitution is extremely difficult." You remember, the whole thing about two-thirds of both houses and three-quarters of state legislatures. The idea of getting two-thirds of both houses to agree on an amendment like this is mind-boggling.

And yet! Tea Party politicians regard the threat of a debt default as a short-term tactic ... not... as a policy goal that is desirable in itself.... Disagreements about the size of government can proceed apace, and conservatives still can prevail if they obtain majorities for cutting spending. Meanwhile, the financial health of the country is not put at risk. Once tempers cool and people move on to other issues, the amendment process—which will probably take many years—can begin.

Oh, you beautiful dreamer. This gives new meaning to the term "ivory tower." People have just lost their tempers! Once they cool down, they'll see their common interests. Then all conservatives need to do is get a majority for cutting spending. No sweat!

There is a much simpler way of dealing with the problem of recurring debt-ceiling crises: repeal the law. Simple majority in both houses. President's signature. Done.

Is that it? A good chunk of the American public seems to believe that the debt ceiling is in the Constitution. Not so. The debt ceiling was established in 1917. It was made obsolete in 1974, when Congress established a regular budget process to deal with spending. But it remained, I don't know why. Everyone knew it would have to be raised from time to time.

Posner is, of course, aware of all this. He even mentions repeal as one of a number of alternatives to a Constitutional amendment. But, he argues, the "problem with these fixes is that they can last only as long as a majority in Congress want [sic] them to last. A better solution is a constitutional amendment."

To see how strange this line of argument is, suppose the Republicans had won both houses of Congress and the Presidency in 2012. They're all set to repeal Obamacare, when.... Wait! Don't repeal Obamacare! If you do that, what happens if the Democrats come back? They could pass it all over again! Instead of repealing it, let's pass a Constitutional amendment against it.

How enthusiastic do you think the Republicans would be about that idea? They would argue that it wasn't at all easy to pass Obamacare in the first place, so Democrats are not just going to wave their hands and restore it. They would point out that such an approach would leave Obamacare in place for years. They would say that first they would repeal the law. Then they would entertain suggestions about a constitutional amendment.

The only sure results from Posner's approach are, first, that people would continue to believe, wrongly, that the debt ceiling is some sort of Constitutional requirement; and second, that nothing would change for a long time. We should do what you're supposed to do with a bad law: Repeal it.

Head-Bang of the Month (Con Law Division)

A recent New York Times article talks about a new approach by voting-rights advocates after the Supreme Court struck down part of the Voting Rights Act. It seems that in another recent decision, Justice Scalia affirmed Congress's right to regulate Federal elections under Article I, Section 4 of the Constitution, known as the "elections clause." The article goes on to say:

The clause is much less well known than, say, the equal protection clause of the 14th Amendment, and yet Congress’s power under it, Justice Scalia wrote, “is paramount, and may be exercised at any time, and to any extent which [Congress] deems expedient.”

Now "a growing circle of legal scholars" is looking this decision,  which "may point the way to a new approach to protecting voting rights."

Huh? Much less well known? A new approach?

Guys, the Constitution is only a little over 4,000 words long, not counting the amendments. That's 16 double-spaced typed pages. It's the shortest constitution in the world. I am not a Supreme Court justice, nor even a constitutional lawyer, nor even a lawyer, but I knew about this clause, and even cited it in connection with voting rights.

How do we explain this? I suppose that laymen have an incorrect picture of what constitutional lawyers do. We think of them as sitting around reading the Constitution all day. Actually, they are probably sitting around reading Supreme Court decisions, and lower-court decisions, and journal articles about Supreme Court decisions and lower-court decisions. So they probably never think about parts of the Constitution that don't happen to be the subject of court cases.

But still....All I can say is, thank goodness for Justice Scalia. That's the first time I have ever written those words, and probably the last. Granted, he was (the most offensive) part of the majority that created the problem. But without him, who knows how long it could've taken "legal scholars" to come up with this idea?

Fake Libertarians

The MSNBC commentator Lawrence O'Donnell recently called Ron Paul a "fake libertarian" because of his stands on sex and abortion, evoking predictable outrage from Paul fans on the Internet. Now, I'm not totally convinced by O'Donnell: a libertarian who believes abortion is murder would surely favor outlawing it, and a moralistic prig can be a libertarian as long as he doesn't impose his views on anyone else.

Much more troubling is Paul's pretentiously named and ludicrously unconstitutional We the People Act, which among other things would bar federal courts (including the Supreme Court) from adjudicating any claim based on "the right of privacy, including issues of sexual practices, orientation, or reproduction."

The subtext here is not only Roe v. Wade, but also Lawrence v. Texas, which struck down the Texas law against sodomy and is still a sore point among Texas Republicans. But how can a libertarian be against a right to privacy? Paul's response is that such a right is not found in the Constitution.

This is an odd argument for a libertarian to make. The Ninth Amendment (part of the Bill of Rights,of course) says, in its entirety: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." One would think that this view of rights--that they inhere in the people, rather than being conferred by the government--would be popular with libertarians. So is Paul a fake libertarian? What's he after here?

The problem is not really that Paul is a fake, by the standards of American libertarianism. The problem is the fundamental phoniness of American libertarianism. It claims to stand for individual liberty and against government interference in our lives. But it sees no problem in state government interference in our lives. Libertarianism is much more about keeping the Federal government off the backs of the states than keeping the states off the backs of the people.

Take a look at the other things that Federal courts would be specifically barred from adjudicating under Paul's bill: "the right to marry without regard to sex or sexual orientation where based upon equal protection of the laws," and, of all things, "state or local laws, regulations, or policies concerning the free exercise or establishment of religion." In other words, keep your Federal hands off my city's hundred-foot cross. And its practice of reciting the Lord's Prayer in public schools. And if we want, we can declare Christianity the official religion of Texas, or outlaw the practice of Islam. Does that sound like individual liberty? More like collectivist tyranny.

Unfortunately, libertarianism has identified itself with the cause of states' rights, and to say the least that's not a cause that has ever been very friendly to liberty. Don't call them "libertarians." Call them "statists."

The Constitution versus Brocco-Tyranny

The mandate to purchase health insurance is the primary legal issue in the case soon to appear before the Supreme Court. Does the Federal government have the authority under the Commerce Clause of the Constitution to make people buy something? What, opponents of the bill frequently ask, is to stop the government from making everyone buy broccoli?

This  argument ignores the fact that state governments already have this power. There has been no constitutional challenge, after all, to the mandate in the Massachusetts health care law. So why is it that, over the last 220 years, not a single state has passed a law requiring citizens to buy broccoli?

The answer can be found in the U.S. Constitution. Not in Article I, Section 8, where the Commerce Clause is found, but in Article IV, Section 4: "The United States shall guarantee to each state a Republican Form of Government." States don't require their citizens to buy broccoli, because they are democracies and voters don't want a broccoli mandate.

This is the ultimate security for citizens in general. It doesn't protect minorities against tyranny by the majority; the Bill of Rights does that. But the intended protection of citizens against tyranny by the government is representative democracy.

Of course, citizens don't want an insurance mandate, either. But they overwhelmingly do want a ban on exclusion by insurance companies for preexisting conditions. It's up to the advocates of a mandate to explain that having one without the other would be like telling people they could wait until after the accident to buy auto insurance.

Misreading the Constitution

I have continued my optimistic, if quixotic, quest to bring civility and open debate to the Internet by visiting sites I don't agree with. Recently I have been spending time at the Volokh Conspiracy, a collective blog by a group of right-wing libertarian law professors. I am pleased to report that I haven't been banned, and that the tone is generally non-abusive and the opinions non-uniform. (There is one guy who referred to "Sonia Sodomizer" and commented on the "Muslim-in-Chief," but he doesn't really fit in there.)

In fact, I am finding this site a bit addictive, because it's actually possible to have a serious discussion there, though so far neither I nor anyone else appears to have been convinced. I did have a sudden intellectual epiphany, though, that I want to tell you about.

It was during discussion of a rather pointless post about a rather silly statement by Rep. Peter DeFazio that he was investigating articles of impeachment against Chief Justice Roberts. Part of the reason was the Citizens United decision immortalized in the last State of the Union address, in which a 5-4 majority struck down limits on corporations' political advertising as violations of the First Amendment.

There was some huffing and puffing about DeFazio (as if no one had ever proposed impeaching a Supreme Court Chief Justice before), and then talk turned to Citizens United. That led to this exchange, with me in italics:

Let me reframe it this way: Suppose (arguendo, as I believe they say) that CU results in big corporations and billionaires having a dominant influence on democratic elections. What would your response be? 1) I’m happy, because it would help my party, and the ends justify the means. 2) I’m happy, because big corporations and billionaires are smarter than average people and should determine policy. 3) I’m unhappy, and I would support legislation to reduce the effect of money, even though it might hurt my party. 4) I don’t care, because the assumption is wildly implausible.

You omit option #5: It doesn’t matter whether I’m happy or unhappy because free speech is not contingent on my approval of the speech.(Of your four choices, I’d go with #4, however.)

So the fact that big corporations and the rich can (hypothetically) take over the electoral process is not something we should do anything about? We shouldn’t do anything if (hypothetically) democracy is a sham, because that would infringe on people’s rights? I doubt the Constitution would have been ratified if people had known that was the deal. Would you (hypothetically) at least support disclosure legislation, or would that have a chilling effect on the speech of Goldman Sachs?

There was no response, though that may have been because this particular thread was getting a bit old at this point.  In any case, that's when I had my epiphany. I had been incredulous that they could be this cavalier about democracy.  Then I realized: Of course they don't care about democracy! They're libertarians!  It's not that they're anti-democratic. But democracy is a form of government, and government is tyranny. Sometimes, of course, it's a necessary evil, but it's still an evil.

Well, it's a free country. If that's what you want to think, I won't report you to the authorities. The important point is that libertarians have read the Constitution to comport with their ideology. So they see the Founders as people who were primarily concerned with keeping government from getting too powerful, and with protecting individual rights.

I think that is a complete distortion of the Constitution. What was really daring and original was to set up a government where sovereignty rested in the people. Literally, no one had done that before. (To this day, sovereignty in Britain rests in Parliament.) And the Founders got the Constitution approved by having the people (white and male, but not necessarily propertied) vote on it. Democracy is the very essence of what the Constitution is about.

Whether you take the libertarian or the democratic view of the Constitution turns out to make a big difference. Citizens United is one example. If free speech is a right of individuals that overrides everything, then the rich (let's leave aside the trickier issue of corporations) have an unlimited right to buy political advertising. If you're interested in a workable democracy, on the other hand, you want to provide strong protections for unpopular speech, but also ensure that open debate is not drowned out by money.

The difference is also stark with libertarians' favorite amendment, the second. (By the way, what is the deal with gun, uh, enthusiasts? It's a piece of machinery, for crying out loud. Like a lawnmower. Why don't we have outdoor refrigerator shows? "You'll take away my dishwasher when you pry it from my cold, dead hand...") The libertarian view blithely ignores that troublesome phrase, "A well regulated Militia, being necessary to the security of a free State..." Why would the Founders have put such a phrase in an amendment intended to enshrine the right to defend one's home? To me, it seems clear that the text is talking about an individual right necessary to ensure a collective activity. Like free speech, as a matter of fact.

So it's probably a mistake to think of the current majority on the Court as being  merely conservative. Yes, they no doubt have more, uh, empathy for corporations than they minority does. But they seem to have a different view about democracy as well.