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View Diary: Why The Debt Limit Fight Will Be A Political Face-Off With No Gimmicks Or Constitutional Crisis (208 comments)

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  •  I discussed that and linked to (4+ / 0-)
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    FG, Quicklund, elwior, MichaelNY

    the case, Trane v City of New York, in which the Supreme Court held that Nixon was required to spend appropriated funds, i.e., that impoundment was unconstitutional.

    But in that case there was more than enough money in the Treasury to pay for the activities that had been funded through the appropriations act. That would not be the case now. The question now would be whether the Treasury can spend money it doesn't have due to the fact that it's current receipts are less than its current obligations and its authority to borrow additional money has been stopped.

    Further, affiant sayeth not.

    by Gary Norton on Mon Jan 14, 2013 at 01:53:16 PM PST

    [ Parent ]

    •  Executive Requirement (1+ / 0-)
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      The president has 3 options and all of them are illegal.  He can not spend which is illegal under the Impoundment Act, borrow more which is illegal under the Debt Limit, or default which is illegal under the 14th Amendment.  So which of the three then becomes unconstitutional, the debt limit.  The 14th Amendment trumps statory law, so it stays.  Between the Impoundment Act or the Debt Limit, the latest statute is the one that takes precedent.  So that means that the debt limit is then unconstitutional.

      •  This was addressed extensively in the (3+ / 0-)
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        Quicklund, elwior, MichaelNY

        article. For the President the question was not whether there are colorable legal argument could be made, but rather whether he would assert that he has the authority to declare a law unconstitutional and refuse to abide by it. I discuss at some length why that is not something he wants to do.

        Further, affiant sayeth not.

        by Gary Norton on Mon Jan 14, 2013 at 02:28:19 PM PST

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        •  Not an Option (2+ / 0-)
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          FishOutofWater, chaboard

          It is not really an option.  Every position he takes is against one of these laws, he has to make a decision.  I understand the argument you are making.  You are saying that the president does not have to spend appropriated funds because Congress appropriates funds in the Treasury and has not provided a way to fund the Treasury.  It is the equivalent of the president deciding that Congress did not appropriate more than allows the Treasury to contain.  While the president can read the law this way, that is just what he is doing, reading the law a way he wants.  There is no affirmative law stating that appropriated funds are no longer appropriated if Congress does not provide a means for funding them.  The Impoundment Act only requires the president to spend what has been appropriated.  To use your argument is the same as using a colorable argument to evade abiding by the Impoundment Act.  He is in the same place however he chooses to act.

          The debt limit is unconstitutional, not because the president decides to declare that it is but because Congress cannot give a clear command to the executive branch to spend money and then a contradictory command not to pay for it.  Congress lacks that authority and the executive is not bound by a command that Congress lacks the authority to give.

          I don't think the president has to deem the debt limit unconstitutional.  I think the executive can only at best make a good faith attempt to comply with constitution.  The constitutional crisis already exists, we are just deciding how to most faithfully react to it.

    •  You Wrote (1+ / 0-)
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      Gary Norton
      This question is totally different than the question of whether the President can refuse to spend appropriated funds when such funds are available, which the Supreme Court has ruled to be unconstitutional.
      Was the "when such funds are available" clause explicit in either the 1974 Act or in the cited decision - or is its inclusion your own interpretation?  

      Thanks for a thoughtful diary.

      •  This was not an issue in the case because (0+ / 0-)

        the Treasury had funds which Nixon impounded. The 1974 Budget Act does not and would have no reason to discuss this issue. That law does two things. First it established the first process for the creation and adoption of congressional budgets. Second it established the procedures that must be followed in order for the executive to impound funds. The language that I cited from the appropriations act appears in all appropriations acts.

        Further, affiant sayeth not.

        by Gary Norton on Mon Jan 14, 2013 at 07:05:01 PM PST

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    •  Asset sales (2+ / 0-)
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      Gary Norton, elwior

      The US has some $400 billion in gold, plus assorted other fairly liquid assets, such as the strategic oil reserve. Wouldn't there be some sort of requirement to sell those assets to pay the bills?

      Incidentally the mere threat of gold sales will freak out the Tea Party - those folks have all their investments in gold.

      Could Obama make a recision request to defer payment of some bills for 45 days? That would let him pick and choose who to pay which could be politically advantageous.

      •  recission not recision (0+ / 0-)

        Sorry for the typo

        •  rescission, not either of the other spellings (1+ / 0-)
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          got it right eventually...

          •  Executive Powers (0+ / 0-)

            I don't think the president has the power to pick and choose.  He could assume such powers if he chooses to go by Gary's argument but I think that would be inappropriate.  The president has no power to choose which appropriations to enact.  While I do agree that the president's approach so far is politically smart, I think in the end, he is constitutionally required to keep borrowing.  I also think the president believes so as well.  During the press conference, he said "They cannot do that." after detailing that congress commands him to spend and then says that he cannot pay.

            I think not raising the debt ceiling is an unlawful act by congress.  They literally cannot choose not to pay for the debt.  I believe the president must take it as implicit that congress provides sufficient borrowing power to meet any appropriations they command him to incur.  If congress wants to assert that it's appropriations are conditional and that the president is required to choose amongst appropriations, they must pass a bill to say so.  I think House Republicans are actually trying to do that already.

            I don't think picking and choosing is politically advantageous.  I think it is the goal of the House Republicans.  Their entire goal is to create a situation where the president cannot raise taxes and must cut spending and the president is the one who has to decide what gets cut and kept.  They want that weight to be the president's.  They are cowards.  Cut, Cap, and Balance was an attempt to create such a situation as well.  This is also why McConnell and Boehner are always saying the president needs to get serious on spending as opposed to simply asking for specific cuts.  The president is trying to avoid having to assume Congress' job while being constrained by Republicans to achieve their spending goals.

      •  Suppose he could sell things for which he has (2+ / 0-)
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        elwior, MichaelNY

        authority under current law, but he won't for the reasons stated. That only delays the inevitable. The debt limit must be raised and putting it off doesn't achieve anything positive.

        Look, the limit has already been breached. We are not in default now only because of the "extraordinary" measures such as canceling the Treasury instruments issued to the Civil Service Retirement Fund. And what has that done but give the Republicans two more months to diddle the country.

        Further, affiant sayeth not.

        by Gary Norton on Mon Jan 14, 2013 at 09:01:07 PM PST

        [ Parent ]

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