Sunday, July 31, 2011

On the Air Again With Tim Corrimal and Friends – Episode 177

Episode 177 of The Tim Corrimal Show has now been posted, and this week Tim and I were joined by returning favorite Vent of The Cultured State (@vcthree on Twitter) and new favorite Jill E. Bond (@JillEBond on Twitter) for another great show. If I do say so myself.

On this week’s episode, after our Twitter Friends of the Week (and do check out mine, @HowieChicago), we moved on to our weekly Republican 2012 Clown Car Update, featuring a runner-up for Blandest Potential GOP Nominee, former New York Gov. George Pataki (although, in fairness, Pataki might be No. 3 on the GOP Blandness Scale behind Tim Pawlenty and Thaddeus McCotter); Michele Bachmann’s Government-Sponsored Mortgage Hypocrisy (video); and Newt Gingrich (who?) with his not-so-Made-In-The-U.S.A. campaign t-shirts (ditto) … the real question being, who knew Newt Gingrich was back from vacation?

In any event, we then turned (inevitably) to the debt ceiling crisis, with Tim playing a clip of yesterday’s comments by the President on the need to compromise for the good of the nation … which comments, for better or worse, are now moot given that the President announced tonight that a deal was reached to avert default:

Washington (CNN) -- Two days before the deadline for a possible U.S. government default, President Barack Obama and congressional leaders reached agreement Sunday on a legislative package that would extend the federal debt ceiling while cutting spending and guaranteeing further deficit-reduction steps.

The proposed $3 trillion deal, which still requires congressional approval, brought some immediate relief to global markets closely watching the situation play out and a nation filled with anger and frustration over partisan political wrangling that threatened further economic harm to an already struggling recovery.

However, there was no guarantee the plan will win enough support to pass both chambers of Congress.

Sigh.

Well, anyway, let me reiterate some questions I raised on the show today. I suspect that whatever the final details are, no one on the left (myself included) will be happy with the deal. We all know that the budget deficit should never have been tied to hiking the debt ceiling in the first place. Raising the debt ceiling is nothing more or less than a mechanism to allow the government to pay debts it’s already obligated to pay, and so it has exactly nothing to do with the deficit itself. I won’t repeat the statistics we all know by now, but Congress has raised the debt ceiling countless times to avoid default since the debt ceiling’s inception in 1917, in almost every instance without controversy. It should have happened that way again.

But the budget deficit was tied to raising the debt ceiling this time, and before we get to assessing blame for what is likely to be a lousy deal, we should take a hard look at how we got here. The conventional wisdom on the left seems to be that it’s the President’s fault for agreeing to negotiate both budget cuts and raising the debt ceiling in the same deal, but I’d like to know what other path he could have chosen. This is not about exculpating the President; it’s about trying to find out what went wrong and whether it could have gone differently. So here’s the question. If from the outset the President had “insisted” on a clean bill raising the debt ceiling, as the President’s liberal critics say he should have done, what would have happened when the GOP just said: “No”?

Raising the debt ceiling required legislative action, and the GOP controls the House and has enough votes to filibuster in the Senate. So no matter what the President “insisted” on, the GOP was free to introduce any legislation it wanted to in the House, including the bill Speaker Boehner ultimately offered last week. As despicable as that bill was, why does anyone think the GOP would have offered a better bill just because the President demanded a “clean” debt ceiling bill from the outset?

And we all know what happened to Sen. Reid’s less odious bill once it reached the GOP-controlled House: It died an untimely death. So, even if the Democratic controlled Senate offered (and the GOP failed to filibuster) a “clean” debt ceiling bill, why would any one think that that would have passed the House?

Therein lies the problem. Republicans, especially in the House, were never going to agree to a clean debt ceiling bill. So, the only arrow left in the President’s quiver, legislation-wise, was to threaten to veto any bill other than an increase of the debt ceiling with no strings attached. But that wouldn’t have solved the problem. It would have sent the parties back to the drawing board to try again. And since it appears, as the Washington Post’s Ezra Klein suggested earlier today, that “[p]lenty of Republicans [we]re prepared to blow through the [debt ceiling] deadline” and to live with the consequences … the simple fact is, they wouldn’t have come back with a clean bill anyway.

So it’s hard to see how we would have ended up in any different position than we’re in now, no matter what the President “insisted” on.

That, at least, is how it appears to me. If I’m wrong, please – please – show me where I’m wrong. Tell me how the President could have forced a majority of the House of Representatives to accept a bill that did nothing more than raise the debt ceiling. I’m tired of platitudes; tell me how it could have happened. Because so far, no one has been able to articulate, specifically, what the President should have done.

Of course, all of the foregoing turns on one key assumption: That the debt ceiling crisis had to be resolved through legislation. There is, of course, the famous (or infamous) “Fourteenth Amendment Solution” that I wrote about last week, and that brings me to this week’s “Legal Corner” segment. To review, the concept is this: Section 4 of the Fourteenth Amendment provides, in relevant part, “The validity of the public debt of the United States … shall not be questioned”; and the legislative history suggests that the rationale for that provision was, in the words of Ohio Sen. Benjamin Wade, that “the national debt [should be] withdrawn from the power of a Congress to repudiate it.”

So, the theory goes, in order to comply with the Fourteenth Amendment, the President could simply ignore the debt ceiling, “invoke” Section 4, and direct the Treasury to continue to pay the nation’s bills even after the debt ceiling was reached.

There are, however, two major problems with the Fourteenth Amendment solution. First, the Amendment itself doesn’t affirmatively grant any power to the President. It doesn’t say that if Congress fails to prevent a default, the President has the power to keep paying the nation’s bills anyway. In fact, Section 5 of the Fourteenth Amendment explicitly gives Congress, and not the President, the power to enforce all of the provisions of the Amendment itself, including Section 4:

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

The second major problem with the Fourteenth Amendment solution, as I detailed in my post last week, is that in the event Pres. Obama were to “invoke” Section 4 and ignore the debt ceiling, there’s a very real chance that Republicans in the House of Representatives would commence impeachment proceedings.

But so that leads me to the real point of my “Legal Corner” discussion this week: The debt ceiling has to go. The law, which began as part of the Second Liberty Bond Act in 1917, is in all likelihood unconstitutional, and it’s horrific as a matter of policy. Even if a law placing a limit on the amount of debt the federal government can incur is constitutional on its face, it’s unconstitutional in its application – as current events clearly show. If the Fourteenth Amendment requires the federal government to honor its debts and the debt ceiling law prevents that from happening unless its amended to raise the debt ceiling, the law, as applied, continually threatens to force the government to violate the Constitution. How can that possibly be constitutional? The answer is, it can’t be.

More to the point, the very purpose of Section 4 was to remove the issue of paying our debts from the political arena altogether. Again, quoting Sen. Wade of Ohio at the time Section 4 was being discussed:

I believe that to do this will give great confidence to capitalists and will be of incalculable pecuniary benefit to the United States, for I have no doubt that every man who has property in the public funds will feel safer when he sees that the national debt is withdrawn from the power of a Congress to repudiate it and placed under the guardianship of the Constitution than he would feel if it were left at loose ends and subject to the varying majorities which may arise in Congress.

(Emphasis supplied.) In other words, the situation we find ourselves in today – this policy nightmare where certain members of Congress use the debt ceiling as a means to extort items off their political wish list – is exactly what Section 4 was designed to avoid.

And so the only grown up way to avoid these problems going forward, and the only way to ensure we pay our debts as the Constitution requires, is to repeal the debt ceiling once and for all.

© 2011 David P. von Ebers. All rights reserved.

1 comment:

  1. An excellent follow up post as always!!!! Right on point!

    ReplyDelete