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The establishment view of the options available for resolving the debt limit issue is presented today in all its glory in an article listing Six Possible Paths Ahead in the Debt-Ceiling Debate: the Boehner House Bill, the Reid Senate Bill, a conference committee's amalgamation of the two, back to a grand bargain, no deal (leading to default), and some combination of the above.

Of course, as Yves Smith's video (already posted here several times and embedded again over the fold) notes, there is a seventh option: unilateral action by the President to order that debts be paid notwithstanding Congress's failure to raise the debt limit.  Smith lists several such unilateral actions (the "platinum trillion-dollar coin," cancellation of debts to the Fed itself) that the Administration could take; personally, I find them plausible but conceptually unsatisfying.  What we want to know is whether the President is entitled to ignore the debt ceiling, not just whether he can technically get away with it.  I've been kicking around an idea this month and it's time to show it the light.

Yes, I argue, the President has the right to ignore the presence of a debt ceiling because when Congress appropriates money that carries with it an implicit permission to spend the money, making raising the debt ceiling a ministerial action that can be taken by the executive.  That's old news.

So far, that has been argued to be a function of the 14th Amendment or of various existing Presidential powers, as I'll review.  The novel (to my knowledge) contribution that I have to offer here is that you can see that this is true by looking at the operation of the absolute highest governing law of the land (with the possible exception of the last clause of Article V): the most recent amendment to the U.S. Constitution.

The 27th Amendment shows us how Congressional appropriations are supposed to work.  If they worked in a way that allowed a debt limit to cut all expenditures, the 27th Amendment would not make sense.

First of all, for those of you who haven't seen it, here is Yves Smith's video talking about (among other things) the President's power to engage in unilateral action to get around the debt ceiling.  This is not the primary point of the diary, but it's good for people to note.  This clip has led to some controversy because it contains a clip from Blazing Saddles, and all I can say is that I urge you not to let Mel Brooks destroy our democracy.  Comment on it below -- way below -- if you must.

The Problem with Unilateral Action

The second-biggest problem with unilateral action is that President Obama doesn't want to do it.  He wants as big a deal as possible to reduce the debt limit, and such a major policy change can only be justified (if against the popular will -- which it is) if it's the only way available to resolve a crisis.  Happily for us, the President has done such an aggressive job of being reasonable that perhaps his appearing on TV next Monday, taking a deep breath, and saying "I know that this is controversial, but I'm simply not going to allow the nation to default" would further burnish his reputation.

The reason the President would deserve some credit for doing is is that due to the first-biggest problem with unilateral action: he would likely be impeached over it.  That is the Republicans' trump card.  He won't be removed from office, most likely, even if he uses constitutionally questionable means to "fight this fire," but he will be sullied as a "would-be dictator" and it could damage his re-election.  (It could also pretty much assure it; it really depends on how strong the Constitutional arguments allowing such an action turn out to be.  That is what this diary is about.)

A variety of smart and perceptive critics have argued that the President does not have the power under the 14th Amendment to simply ignore the debt limit.  At the beginning of this month, our Gary Norton wrote a provocative diary sounding the alarm against the theory presented by Sen. Schumer among others, suggesting that President Obama can just declare that Section 4 of the 14th Amendment does not allow Congress to fail to extend the debt limit to cover items that have already been appropriated.  Talking Points Memo provided its own pessimistic analysis a few days later.

Our FleetAdmiralJ wrote a really interesting diary that same day also taking on the 14th Amendment (see the comments for a discussion of and links regarding "jumbo coin seigniorage," the preposterous-sounding but perhaps not entirely mad platinum coin idea, as well.)  He argues that the combination of Article I, Section 8, Clause 2 (giving Congress the power to "borrow money on the credit of the United States") and Article I, Section 9, Clause 7 ("No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law") implicitly grants the President the power to ignore the debt limit:

[C]onsider the following: Does it make sense for Congress to be able to pass a budget with deficit spending on the one hand, but then refuse to actually authorize the borrowing needed to fund that same budget on the other hand?

... [T]he power to appropriate in conjunction with the power to borrow would seem to create the situation where by the very act of passing an unbalanced budget, Congress implicitly authorizes the borrowing authority required to pay for that budget.

Indeed, up until the 1920s and 1930s, the Congress extended new borrowing authority as needed as part of each budget.  The borrowing authority and the budget were ultimately separated in the 1930s in order to give the Treasury Department more flexibility, with the debt ceiling as we know it being created in 1939.

Normally, extending the debt ceiling has required a separate vote in Congress.  However, again, it would appear to be inconsistent that Congress could authorize deficit spending in a budget, but then refuse to authorize the actual debt from being issued.

And this is where, I think, if any constitutional option can be taken, where it could be made: the determination that, by passing an unbalanced budget in the first place, Congress implicitly increased the debt ceiling to cover that budget.

I like this view more than the pure 14th Amendment view, for reasons expressed by its critics -- but it could use a little more constitutional bolstering.  The 27th Amendment provides it -- or, if one chooses, bolsters the 14th.

The Constitution Does Not Require a Car Crash

Like the Admiral, I interpret the Constitution to say that when Congress appropriates money for and authorizes expenditures on something, pursuant to some bill, it implicitly endorses an increase in the debt limit to allow for the continuation of a program.

An automotive analogy will helps us consider how the budgeting process allows Congress to rein in spending:

Congress may bring the government’s momentum to a halt by easing up on the accelerator (not authorizing new spending),

or it may do so by stepping on the brake (repealing previous authorizations),

but it is not entitled to slow the growth of government by requiring that the President slam into a brick wall.

What evidence is there of this?  Well, consider the implications of the alternative theory, that if Congress doesn’t approve a debt ceiling increase then we “slam into the brick wall” of a government shutdown, for the operation of the Twenty-Seventh Amendment.  If the system worked the way critics of the "14th Amendment" approach say it does, you get a truly twisted result.

To cut to the chase: if the Constitution operated so that the President had to "slam the government into a brick wall in order to stop it" whenever the debt ceiling was hit, then Members of Congress could not be paid, after a debt limit expired during their term, no matter what they did with respect to the debt limit after the previous general election date.  That's right: if by 11:59 p.m. ET on Nov. 5, 2012, the President has not signed a law extending the debt ceiling to as high as it would conceivably need to be raised through Nov. 3, 2014, then if any debt ceiling vote becomes necessary between those dates due to the prospect of government insolvency /all federal legislators could not be paid again until Nov. 4, 2014.

I submit that this could not have been the intended effect of the 27th Amendment (either from its author James Madison or from the 38 states that ratified it in the late 20th century, after "debt limit" laws had come into being.)  If you agree that this is an absurd result, the question becomes: "why it is an absurd result?"  And, I will conclude, it's because a debt limit law is a "ministerial act," not an opportunity for Congress to grab the steering wheel and aim for a brick wall.

The three to the fightin' third Amendment

Let's start with the text of the Twenty-Seventh Amendment:

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

(An aside, just to give Agitated Dear Reader a chance to settle down and rest: the Twenty-Seventh Amendment, as you may know, was to be the original "Second Amendment" in the Bill of Rights proposed to Congress by James Madison, but it and the first First Amendment were not ratified back at the time.  The original First Amendment has never been ratified, but the original Second Amendment was plucked off the shelf by Wyoming in 1978 to be ratified and then ratified by thirty-seven more states after that.)

What effect does the debt limit has on Congressional salaries?  It allows them to be paid.  Without the increase, no pay.  With the increase, pay.  A debt ceiling adjustment, therefore, varies the compensation for the services of Senators and Representatives -- if it has more than a ministerial effect.  (That is, if it were not simply a technical requirement that could, in a pinch, be ignored.)  If it has only a ministerial effect -- if it's a formality, like counting the Electoral Votes in Congress after the election -- then it does not vary the compensation of Congress, and it can be passed at any time.

The last increase in the debt ceiling was in February 2010.  An election has interceded since then, so the 27th Amendment wouldn't prohibit its operation at this moment.  But let's say the last debt ceiling increase had come in February 2011 and that Congress now refused to raise the ceiling.  What role should the 27th Amendment play in that analysis?  Should Obama should be able to, of his own accord and on his own reading of the 27th Amendment, say that Congressional salaries must be paid?  Would he have to appeal to a Court before directing that they be paid?

Actually, the previous hypothetical may offer a clue.  I said that the 27th Amendment would not apply here (because an election of House members has intervened) -- but is that true?

I will tentatively propose an argument, as part of a reductio ad absurdum, that the 27th Amendment prevents any prospective bill to raise the debt ceiling from taking effect until November 2012 -- at least with respect to compensation of federal legislators -- because doing so would constitute a "law, varying the compensation for the services of the Senators and Representatives" and thus cannot "take effect, until an election of Representatives shall have intervened."

To explain: without this law, the Senator and Reps could not get paid, because the government runs out of money.  With this law, they can get paid, because the government won't run out of money.  Therefore, passing a debt ceiling increase now would violate the Twenty-Seventh Amendment as applied to Congressional salaries.  In fact, it's not only that:  any law increasing the debt ceiling passed after the most recent general election day would be void, with respect to federal legislator salaries, because without that law the government would have run out of money (and they could not be paid) and with the law the government doesn't run out of money and they can be paid.

I submit to you that that cannot be the intended meaning of the Twenty-Seventh Amendment, which supersedes the Fourteenth, even though from its plain language it would apply to any raising of the debt ceiling.

But if that's not the intended operation of the Twenty-Seventh Amendment, why isn't it?

I refer you to the above.  It's because the Twenty-Seventh Amendment applies to legislative actions -- and raising a debt ceiling is not a substantive legislative action.  The substantive legislative action was the appropriation of funds for Congressional salaries in the budget.  If raising the debt ceiling is a mere formality, without the power to add or detract to Congressional compensation, then it does not violate the Twenty-Seventh Amendment.

That also means, though, that as a ministerial act the President -- especially given the powers described above -- is free to ignore its absence.  (Remember when there was that bill that ended up being worded different in the two chambers and was nonetheless given effect in apparent violation of the Presentment Clause?  That was a similar analysis.)

What that means is that there should be no plausible case for impeachment if the President acts unilaterally here.  The President would be using sound judgment in deciding that the lack of a debt ceiling increase was simply a matter of Congress deciding to blast through its self-imposed credit limit -- something that it can do without consequence -- and that the President would be violating the law only by refusing to expend lawfully appropriated funds.

That, in turn means that Obama may act -- and that, in turn, means that Obama must act.  And to those wealthy people who bet on default and stand to lose a lot of money if it doesn't come through -- both from buying stocks low and from a lasting risk premium on government bonds -- we merely say: "sorry, but the U.S. Government /can't default on a technicality.  Next time be sure to read the Constitution all the way to the end."

Take the Seventh Option, Mr. President.  Cut through the Gordian Knot of the noose around our collective neck.

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Comment Preferences

  •  Here's to the 27th Amendment and the 7th option! (30+ / 0-)

    We need to pressure the President to agree that, if necessary, he will take the constitutionally acceptable option of unilateral action rather than claiming that he has no choice but to crash the car into the wall to stop it.  In fact, doing that may be the actual unconstitutional option, leading to impeachment -- something that he ought to consider very carefully in the days ahead.

    In my avatar, the blue bars show how many want Reps who COMPROMISE; the aqua bars show who wants Reps who STAND FAST no matter what. (Left=Overall; Center=Democrats; Right=Republicans.) And there's the problem!

    by Seneca Doane on Tue Jul 26, 2011 at 08:15:42 AM PDT

    •  Novel and intriguing, and complex (12+ / 0-)

      enough even for a poll sci major/Constitutional lawyer that I had to read through it a couple of times; but now I'm a believer.

    •  Excellent Article...Thanks (9+ / 0-)

      I'll just add the following:

      I say that if President Obama does not pay these debts as they become due, then he would in fact be violating the law - and hundreds of them at least. Indeed, the situation would surely constitute a "conflict of laws and authority" under innumerable statutes and Articles of the Constitution.
      Yet, in conflict of law situations, specific statutes take precedence over general ones (including resolutions such as the Debt Ceiling Resolution)

      Remember, all these expenditures are called for, and are in fact required, under exsiting law. Also, non-passage of the Debt Ceiling Rule or Resolution (it is not a statute) does not change that. Furthermore, it is a specific duty of the President to see that the existing laws are executed and carried out.  In fact, not to do so might make him guilty of constructive impoundment, insofar as the "President does not have the inherent power to refuse to spend" sums authorized by existing statutes.  (Train v. City of New York, 420 U.S. 35 (1975).)  
      Based upon the above, I would suspect that should the President fail to expend sums called for by and under existing statutes (like Social Security payments), there will be a cascade of law suits filed against him to do so.  

      I would also respectfully contend that if Congress wishes to prevent these payments under existing statutes, they would have to change every single statute which authorizes, and even mandates, the President to make said already Congressionally authorized payments.  

      Additionally, because of the above, I would assert that the Debt Ceiling Resolution is an improper usurpation  of Article II (Presidential) power and authority, because it prevents the President from carry out and enforcing existing law, and by resolution no less.  Again, all these spending statutes will still be on the books come August 2nd.

      On the other hand, the Debt Ceiling Resolution could also be found unconstitutional because it improperly delegates power and authority to the President to decide which bills are to be paid and which bills are not to be paid.  In short, the President does not have the Constitutional power to decide which bills are to be paid or not paid (Train v. City of New York, supra).  

      Besides that, the Debt Ceiling Resolution is also vague and arbitrary, and probably unconstitutional for that reason as well.  For sure, it will create an unresolved conflict between hundreds (if not thousands) of statutes and that singular Debt Resolution.

      Then we have the President's inherent power to deal with a national crisis or national emergency. (The Youngstown Sheet and Tube Co. v. Sawyer Case in which the President had been found inherently empowered to seize the American steel companies during a threatened strike.  Moreover, when you combine this inherent emergency power with Section 4 of the 14th Amendment of the U.S. Constitution, the President has a very, very powerful hand in this matter.

      Folks, Bill Clinton gave very good advice on this subject, and I just hope President Obama will listen to it.  

  •  I agree, quite novel, but a constitutional crisis (7+ / 0-)

    in this arena may in fact be necessary

    What that means is that there should be no plausible case for impeachment if the President acts unilaterally here.
    Is congressional pay always contingent on the necessity of legislation since the President's potentially unilateral actions would be under exigency conditions and does it violate separation of powers?

    I am off my metas! Präsidentenelf-maßschach; Warning-Some Snark Above join the DAILY KOS UNIVERSITY "Nous sommes un groupuscule" (-9.50; -7.03)

    by annieli on Tue Jul 26, 2011 at 08:37:09 AM PDT

    •  I think it has to be in the budget, right? (12+ / 0-)

      Is there an argument that Congress members can be paid but Social Security recipients cannot?  Let Boehner try to make it.

      In my avatar, the blue bars show how many want Reps who COMPROMISE; the aqua bars show who wants Reps who STAND FAST no matter what. (Left=Overall; Center=Democrats; Right=Republicans.) And there's the problem!

      by Seneca Doane on Tue Jul 26, 2011 at 08:41:05 AM PDT

      [ Parent ]

    •  This is all very interesting, even though I have (2+ / 0-)
      Recommended by:
      Lujane, annieli

      no special knowledge of the laws involved (read: no legal background very limited understanding of the federal budget process, etc).

      As an intellectual exercise it's definitely diverting. I wonder, though, why should we be trying to figure this out while the Supreme Court Justices are vacationing? Ultimately they may need to resolve the issues of: Can President Obama act unilaterally? Must President Obama act, even if he must do so unilaterally? Etc.

      Nothing wrong with people trying to anticipate the decision which may come from on high. I'd like some assurance that the Supremes golf and tennis plans can be put on hold for a few hours to keep the country's economy from going into the ditch, though.

      It would be interesting if it became known that President Obama and Senate Majority Leader Reid had asked for a preemptive clarification by the Court, seeking to avoid a calamity.

      I don't honestly know the full measure of the risks involved in a default, but it seems truly crazy to endanger ourselves "merely" because the umpires are off getting a hotdog.

      Then again if the Court intends to avoid budget and debt issues as excessively "political" (when has that stopped them before?), it should be known ahead of time that they won't wait until after the train wreck but then sort through the damage.

      An optimist may see a light where there is none, but why must the pessimist always run to blow it out? Rene Descartes

      by Had Enough Right Wing BS on Tue Jul 26, 2011 at 06:27:38 PM PDT

      [ Parent ]

  •  Simpler form of the argument (16+ / 0-)
    1. The 27th precludes changing the compensation of a member of Congress (not increasing - just changing) during the current term
    2. Hitting the debt ceiling causes their compensation to be changed, but is not per se a law
    3. The law which causes the debt ceiling to be reached is the most recent budget
    4. Clearly the 27th does not imply that the 2011 budget does not take effect until Jan 2013
    5. Therefore, the only way for the 2011 budget to not be in violation of the 27th Amendment, is for the 2011 budget to implicitly authorize the executive branch to raise the debt ceiling as necessary in order to spend the authorized funds

    Q.E.D. and feel free to cite me when Obama cites your diary on August 1st.


    In theory, there is no difference between theory and practice; but in practice, there always is a difference. - Yogi Berra

    by blue aardvark on Tue Jul 26, 2011 at 08:39:04 AM PDT

  •  It's cute. (6+ / 0-)

    The 14th amendment argument seems a lot more straightforward though.

    •  Read the linked articles that attack (7+ / 0-)

      the 14th Amendment argument, which I take seriously.  I think that these Amendments -- and the clauses that FleetAdmiralJ cites -- can be taken to work together.  This means that we need to pressure the President to act unilaterally.

      In my avatar, the blue bars show how many want Reps who COMPROMISE; the aqua bars show who wants Reps who STAND FAST no matter what. (Left=Overall; Center=Democrats; Right=Republicans.) And there's the problem!

      by Seneca Doane on Tue Jul 26, 2011 at 08:46:45 AM PDT

      [ Parent ]

    •  Actually, I don't find it cute (6+ / 0-)

      perhaps because that sounds demeaning to my ear.  

      I find the argument quite interesting -- perhaps because difficult cases require reaching very far out of the box to build on not just law but logic.  And I don't think the 14th amendment is straightforward at all.

      Vi er alle norske " My faith in the Constitution is whole; it is complete; it is total." Barbara Jordan, 1974

      by gchaucer2 on Tue Jul 26, 2011 at 08:49:33 AM PDT

      [ Parent ]

      •  What the 27th and 14th and the sections of (5+ / 0-)

        Article I that FleetAdmiralJ cites is collectively make the case that the "credit limit" rise is ministerial -- and that, in fact, violating it has no practical effect.  In that case -- and this is the argument to start to make -- Obama had better authorize continued spending! Doing otherwise would be illegal sequestration of funds -- as well as being politically unpopular -- and that, more than going ahead with business as usual, could be ripe grounds for impeachment and removal.

        In my avatar, the blue bars show how many want Reps who COMPROMISE; the aqua bars show who wants Reps who STAND FAST no matter what. (Left=Overall; Center=Democrats; Right=Republicans.) And there's the problem!

        by Seneca Doane on Tue Jul 26, 2011 at 08:52:43 AM PDT

        [ Parent ]

        •  Of course, none of us have a (5+ / 0-)

          clue what will happen, but it is always interesting to explore legal avenues.  No matter what happens in 7 days, I'm convince the Republicans and their impeachment buddy, Kucinich will call for hearings.

          I'd prefer Obama do something radical if impeachment is predictable.  He would have the force of public opinion behind him.  The worst thing the House could do, other than fuck over the economy, is to spend time on hearings and no job bills.

          I keep a copy of that picture of Obama, et al. during the strike on bin Laden where I can see it.  I'd guess most folks here -- definitely me -- do not have that kind of nerve -- rather, they have keyboards and opinions.  There are zero serious consequences for opinions in the blogosphere.

          Vi er alle norske " My faith in the Constitution is whole; it is complete; it is total." Barbara Jordan, 1974

          by gchaucer2 on Tue Jul 26, 2011 at 09:00:48 AM PDT

          [ Parent ]

      •  You think an indirect argument (1+ / 0-)
        Recommended by:
        whaddaya

        tying Congressional pay raises to the debt ceiling through the 27th amendment (pretty clearly not the intent of the amendment) is more straightforward than arguing that

        The validity of the public debt of the United States, authorized by law ... shall not be questioned.

        says that the debt ceiling is unconstitutional?  Especially as that does seem to have been the intent of the clause.

        I don't, but okay.

        •  The problem with the 14th (4+ / 0-)
          Recommended by:
          whaddaya, Rebecca, Lujane, cville townie

          is mainly with its historical grounding.  Read the articles criticizing it.  It was pretty clearly designed to address a different concern.  Given that the underlying question is whether this is a ministerial act, and the 27th was ratified in an era of debt ceiling laws, I think it helps -- and they work best in concert.

          In my avatar, the blue bars show how many want Reps who COMPROMISE; the aqua bars show who wants Reps who STAND FAST no matter what. (Left=Overall; Center=Democrats; Right=Republicans.) And there's the problem!

          by Seneca Doane on Tue Jul 26, 2011 at 09:03:50 AM PDT

          [ Parent ]

        •  First, you didn't read my comment (2+ / 0-)
          Recommended by:
          Seneca Doane, Lujane

          else you wouldn't put words in my mouth.  Second -- I actually read the whole diary -- and this part piqued my interest:

          referring to FleetAdmiralJ's blockquote

          I like this view more than the pure 14th Amendment view, for reasons expressed by its critics -- but it could use a little more constitutional bolstering.  The 27th Amendment provides it -- or, if one chooses, bolsters the 14th.

          I try to read different opinions re: the law -- not because I think they would be necessarily successful -- but because they require me to think beyond my pre-conceived notions on a matter.

          Vi er alle norske " My faith in the Constitution is whole; it is complete; it is total." Barbara Jordan, 1974

          by gchaucer2 on Tue Jul 26, 2011 at 09:07:18 AM PDT

          [ Parent ]

        •  I love it when people say the Constitution is ever (3+ / 0-)
          Recommended by:
          Seneca Doane, whaddaya, Lujane

          straighforward.  Yeah, that's why it's the most difficult specialty to practice, because the document in question is clear, easy to read, and never in contention....

          Cynic, n: a blackguard whose faulty vision sees things as they are, not as they ought to be.

          by Fed up Fed on Tue Jul 26, 2011 at 09:17:12 AM PDT

          [ Parent ]

        •  Not "more staightforward," but (1+ / 0-)
          Recommended by:
          cville townie

          I'll give you "less obviously wrong."

          I don't think this dairy is any less wrong, because it rests on the same false premise, the idea that "passing a law" is the same thing as "borrowing money."

          Unless and until Congress exercises it's exclusive and enumerated power to borrow money on the credit of the United States, there is no public debt. All the 14th Amendment requires is that, if Congress borrows money, it must be repaid. There's no way to bootstrap that language into requiring Congress to borrow money if it doesn't want to, and there's certainly nothing anywhere that can transfer that power to the Executive.

          Even the pay provision of the 27th isn't automatically impacted by a refusal of Congress to authorize additional borrowing. As long as the specific expenditures it covers are made, the Amendment is satisfied. Just as with the 14th, it's telling you what has to get paid when you can't pay everything. It does not extend into "everything must be paid."

          --Shannon

          "It is better to die on your feet than to live on your knees." -- Emiliano Zapata Salazar
          "Dissent is patriotic. Blind obedience is treason." --me

          by Leftie Gunner on Tue Jul 26, 2011 at 09:28:20 AM PDT

          [ Parent ]

          •  I don't say that it's "the same thing" (0+ / 0-)

            I will say that, given past practice, authorization to spend may be taken to imply authorization to borrow.  Look at my automotive analogy in the diary.  Congress has sufficient tools at its disposal to protect its interests by hitting the accelerator and the brake; it doesn't need the power to cause the President to stop the economy by smashing into a wall.  That, frankly, would be a stupid system.

            Reasonable people can, of course, disagree.

            In my avatar, the blue bars show how many want Reps who COMPROMISE; the aqua bars show who wants Reps who STAND FAST no matter what. (Left=Overall; Center=Democrats; Right=Republicans.) And there's the problem!

            by Seneca Doane on Tue Jul 26, 2011 at 08:33:31 PM PDT

            [ Parent ]

        •  clearly so (1+ / 0-)
          Recommended by:
          Seneca Doane

          the 14th only says the debt shall not be questioned, as when Bush referrred to the social security IOUs (bonds acutally) as "scraps of paper".  It doesn't say they have to be paid on time.

          Scientific Materialism debunked here

          by wilderness voice on Tue Jul 26, 2011 at 01:17:54 PM PDT

          [ Parent ]

  •  Thanks for the information - First read (2+ / 0-)
    Recommended by:
    Seneca Doane, Rebecca

    is impressive/intriguing. This is one I will have to read over to noodle out the nuances.

    I'd say it gives greater ammunition to the use of the 14th...

    -6.25 -7.08 The glass is neither half-full nor half-empty. The glass is just twice as large as it needs to be.

    by Unit Zero on Tue Jul 26, 2011 at 08:44:13 AM PDT

  •  Whoah...27th Dimension chess? (4+ / 0-)

    Seneca Doane to Obama:

    doin it wrong

    I'm "THE" Troubadour," and not "Troubadour" without the article. We're different people here at DK :)

    by David Harris Gershon on Tue Jul 26, 2011 at 08:45:29 AM PDT

  •  Violating The Constitution (0+ / 0-)

    Constitutional law and legal matters in general are not my area of expertise. That said, your diary implies that a failure of Congress to pay for the budget they passed is a violation of the Constitution. If that is the case then everyone from Boehner on down the line should be impeached for failure to uphold their oath of office, which includes "preserving and protecting" the Constitution.

    Full disclosure: I believe they have already violated their oath of office and should be arrested and tried for treason.

    "Without LOVE in the dream it will never come true..." -Hunter/Garcia

    by US Blues on Tue Jul 26, 2011 at 08:53:11 AM PDT

  •  The House GOP will impeach (3+ / 0-)

    regardless of the constitutional niceties.

    And the Senate Dems will refuse to convict...

    Give me your tired, your poor, Your huddled masses yearning to breathe free
    ¡Boycott Arizona!

    by litho on Tue Jul 26, 2011 at 08:56:47 AM PDT

  •  This is another intriguing argument SD that, (3+ / 0-)
    Recommended by:
    Seneca Doane, PeterHug, whaddaya

    together with the 14th Amendment argument could be used by the President to ignore the debt limit. But using either of them or something else still puts the President in a precarious position. He would be asserting he has the authority to ignore a law. Specifically, that the can order Treasury to issue debt in contravention of a law.

    This puts him in a similar position with Lincoln when he suspended habeas corpus. As you recall he first did it on a limited basis, Chief Justice Taney issued a writ for Merryman in violation of the order, Lincoln ignored it, Merryman sued and won, Lincoln ignored the decision and expanded his order nationwide, and Congress eventually passed a law ratifying Lincoln's order. Much has been written on it and here's a short summary.

    The President may decide to engage in this type of Constitutional confrontation with the Congress but for the reasons discussed here I think he won't. I almost wish he would, but the peril is immense. If he does he will certainly use every Constitutional bootstrap he can find, including maybe your 27th argument, to justify his legal position.

    Further, affiant sayeth not.

    by Gary Norton on Tue Jul 26, 2011 at 09:03:19 AM PDT

    •  Your diary helped inspire this one (3+ / 0-)
      Recommended by:
      Gary Norton, PeterHug, whaddaya

      because I found your argument compelling and wanted to see if the dangers could be cabined -- so I ended up here.  Identifying the absence of ministerial actions something the President can ignore to forestall a catastrophe seems like a safe approach.

      In my avatar, the blue bars show how many want Reps who COMPROMISE; the aqua bars show who wants Reps who STAND FAST no matter what. (Left=Overall; Center=Democrats; Right=Republicans.) And there's the problem!

      by Seneca Doane on Tue Jul 26, 2011 at 09:15:00 AM PDT

      [ Parent ]

      •  This is why I think there is no conflict (4+ / 0-)
        Recommended by:
        Seneca Doane, PeterHug, whaddaya, Rebecca

        between appropriations acts and the debt limit act. Those who have written on the subject never seem to look at the text of each appropriations act.

        Appropriations acts tell the president to spend. The debt ceiling does not tell him not to spend, it merely prohibits him from borrowing. This is a critical distinction because each appropriations act begins like this,

        "The following sums are appropriated, out of any money in the Treasury not otherwise appropriated."

        The key words are "out of any money in the Treasury." The appropriations acts only direct the President to spend money that is in the Treasury. They do not direct that money be placed in the Treasury. The laws that do that are the laws that impose taxes and the laws that authorize borrowing, the proceeds of which are put in the Treasury. The debt ceiling operates as a limit on that borrowing power. Bottom line, if there is no money in the Treasury the appropriations act doesn't appropriate anything.

        There is no conflict. When you hit the debt limit the only money "in the Treasury" is money from tax receipts. And that money is all the money the Treasury can spend. This is not a situation involving impoundment of funds, whether by rescission or deferral. They are governed by The Budget and Impoundment Control Act of 1974. They involve situations where there is ample money in the Treasury, acquired by taxes or through borrowing, and the President decides to not spend some of it. In this instance there is insufficient money in the Treasury to pay the bills because tax receipts are too low and there is no authority to borrow more.

        Further, affiant sayeth not.

        by Gary Norton on Tue Jul 26, 2011 at 09:26:57 AM PDT

        [ Parent ]

  •  Thank you SD for writing something (2+ / 0-)
    Recommended by:
    Seneca Doane, whaddaya

    substantive, that we can mull over. It is quite a contrast to so much that is posted and given attention to of late.

    Further, affiant sayeth not.

    by Gary Norton on Tue Jul 26, 2011 at 09:12:46 AM PDT

  •  I say let's go Patriot Act on them (1+ / 0-)
    Recommended by:
    whaddaya

    President Obama, would you lock up the assholes now terrorizing the Congress and throw away the key? Next case.

  •  This is beautiful. Thank you. (2+ / 0-)
    Recommended by:
    Seneca Doane, whaddaya

    I put enough kinks and strain in my brain in my brain just getting it sorted so I understood it that I have to go dig in  my garden now.   also thanks to blue ardvark for the help

    “Nothing in the world is more dangerous than a sincere ignorance and conscientious stupidity.” Martin Luther King, Jr.

    by maybeeso in michigan on Tue Jul 26, 2011 at 09:35:27 AM PDT

  •  Interesting, but irrelevant (1+ / 0-)
    Recommended by:
    thestructureguy

    Irrelevant because we are well into that period during which "the law is what I say it is".  Power, money, emotion, insanity; these are the relevant factors in politics today.  that apocryphal incident in which Bush supposedly described the Constitution as "just a damned piece of paper" accurately describes the state of law today.  Laws are not the bones of political policy, they are merely the glove over the fist.

    I am become Man, the destroyer of worlds

    by tle on Tue Jul 26, 2011 at 10:11:42 AM PDT

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