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The D.C. Circuit on the Nuclear Option

One additional tidbit from the D.C. Circuit’s decision in Common Cause v. Biden is worth noting. In footnote 5, the court discusses the Senate’s exercise of the “nuclear option” last fall:

That opportunity to appeal [from the ruling of the presiding officer] constituted the so-called “nuclear option” the Senate invoked to modify the cloture rule as applied to executive branch and lower federal court nominees. On November 21, 2013, the Senate considered, and defeated, a cloture motion on a nomination to a judgeship on this court. Senator Reid, the majority leader, then raised a point of order to the Chair, positing that a cloture vote for such nominations required only a majority. The Chair rejected the point of order under Rule XXII. Senator Reid then appealed the ruling to the full Senate, and, by a 52-48 vote, the Chair’s ruling was overturned. Thus was set new Senate precedent interpreting Rule XXII in the context of executive and lower federal court nominations.

(citations omitted). This discussion is no doubt dicta, but it provides at least some explanation of what the Senate did, which is more than it appears we will be getting from the Senate itself. The explanation is somewhat self-contradictory, in it describes the Senate as having both “modif[ied]” Rule XXII and issued a new precedent “interpreting” the rule. Literally, of course, the Senate did not modify Rule XXII, which reads today exactly as it did prior to November 21. We therefore can assume that the D.C. Circuit meant that the Senate “modified” the rule by “interpreting” it to mean something other than what it had “interpreted” it to mean before.

The practice of abruptly changing the interpretation of a rule without explanation ought to be troubling enough. But in the case of Rule XXII, the imagination staggers as to what explanation could be given. Did the Senate “interpret” the phrase “three-fifths of the Senators duly chosen and sworn” in Rule XXII to mean a bare majority? Or did it “interpret” Rule XXII to be simply inapplicable to cloture motions for executive and lower court judicial nominations, although there is nothing in the text of the rule or any other source of legal meaning (such as legislative history) to support such an interpretation?

The only possible coherent explanation for the Senate’s action, other than lawlessness, would be that the Senate viewed Rule XXII as unconstitutional. But while the Senate conceivably could have viewed Rule XXII as unconstitutional in its entirety, or as to nominations alone, there is no plausible way it could have viewed the rule as unconstitutional as to executive and lower court nominations, but not as to Supreme Court nominations. Perhaps it was for this reason the D.C. Circuit did not suggest that the Senate’s action stemmed from a constitutional judgment.

 

 

Common Cause’s Impossible Dream: Act II

Not surprisingly, the D.C. Circuit has affirmed the district court’s dismissal of Common Cause’s challenge to the constitutionality of the filibuster. Like the court below, the appellate panel found the plaintiffs lacked standing to sue, but its rationale was somewhat different. The district court’s decision was rooted in the absence of a cognizable injury and the court’s lack of power to remedy the harm allegedly caused by the filibuster rules (namely Congress’s failure to enact two pieces of legislation, the Dream Act and the Disclose Act, that would have benefitted the plaintiffs). It also concluded that the suit was barred by the political question doctrine.

The D.C. Circuit, on the other hand, “focus[ed] on whom Common Cause chose to sue—or, more to the point, not to sue.” The Senate, of course, is responsible for enacting and enforcing its own rules, yet Common Cause did not name the Senate or any senator as a defendant. Instead, it sued the Vice President and three Senate officers.

This was a transparent ploy to circumvent the Speech or Debate Clause, which would certainly have required the dismissal of any suit against the Senate or particular senators. As the court points out, what defeated the Dream and Disclose Acts was “legislative action, activity typically considered at the heart of the Speech or Debate Clause.” There was, however, no need to decide whether the Clause barred suit against the Vice President and Senate officers because these were simply the wrong defendants.

The court was unimpressed by Common Cause’s reliance on Powell v. McCormack, 395 U.S. 486 (1969), in which a member of the House was able to challenge his expulsion by suing the Sergeant at Arms to recover back salary. As we have discussed before, the Sergeant at Arms was responsible for paying Powell’s salary and thus could be said to have caused this very specific injury to the plaintiff. But nothing in the Supreme Court’s decision suggests that congressional officers can be used generally as stand-ins whenever someone wants to challenge an allegedly illegal House or Senate action.

In contrast to the situation in Powell, the court notes “Common Cause does not identify anything the defendants did (or refrained from doing) to cause its alleged injuries.” The only remotely plausible link is the Vice President’s role as presiding officer of the Senate, but any ruling by the presiding officer is subject to appeal to the full chamber. Thus, even if the Vice President had been presiding at the time of the votes Common Cause complains of (which he was not), and even if he had ruled on a relevant issue (which he did not), it would still be the Senate, not the Vice President, that caused the alleged injury.

Accordingly, Common Cause’s failure to sue the Senate or any senator leaves it “Hoist with [its] own petar,” as the court puts it, quoting Hamlet (act 3, scene 4, if you were wondering).

To appeal or not to appeal, that is the question. Perhaps Common Cause’s quixotic quest (to mix metaphors) will yet have a third act. Or perhaps it will decide it is nobler in the mind to suffer the slings and arrows of outrageous fortune. Only time will tell.

Is SSCI Following the Senate Rules?

According to a press release from Chairman Feinstein yesterday, the Senate Select Committee on Intelligence has “voted to declassify the 480-page executive summary as well as 20 findings and conclusions of the majority’s five-year study of the CIA Detention and Interrogation Program, which involved more than 100 detainees.”

But, wait, SSCI can’t “declassify” anything. Classification and declassification are internal executive branch procedures. Indeed, the press release goes on to say:

The executive summary, findings, and conclusions—which total more than 500 pages—will be sent to the president for declassification review and subsequent public release. President Obama has indicated his support of declassification of these parts of the report and CIA Director Brennan has said this will happen expeditiously. Until the declassification process is complete and that portion of the report is released, it will remain classified.

That makes it sound as if SSCI has merely asked the executive branch to declassify the materials, which is quite different from actually declassifying them.

So what is actually going on here? Continue reading ‘Is SSCI Following the Senate Rules?’ »

Addition and Subtraction in Article V Counting

Yesterday Representative Duncan Hunter (R-Ca.) sent a letter to the Speaker asking for the House to determine how many states have applied for an Article V convention to propose a balanced budget amendment. Hunter’s letter was prompted by Michigan’s passage last week of a resolution applying for such a convention. With the addition of Michigan, 34 states have applied for a convention limited to this purpose at one point in time. If one counts all of these applications, Congress would be obligated to call a convention under Article V.

Most observers, however, would not count all of these applications. That’s because a number of states have rescinded after initially applying for a convention. If these rescissions are valid, then only 23 states currently have applied for a convention, or, in Professor Michael Paulsen’s phrase, have their lights “on” for an Article V convention. Another 11 states would have to apply in order to trigger a convention call by Congress.

Although the question of whether states may rescind their applications is a legal question, I am not sure how much lawyers can add to common sense here. To prohibit state legislatures from rescinding their applications would mean that any applying state would be bound forever (since the Constitution provides no expiration date on applications). If this were the case, no sensible state would apply for a convention except simultaneously with the requisite number of other states needed to trigger a convention call; to apply “early” would leave all of the discretion in the hands of the non-applying states. This seems like an exceedingly odd result, to say the least. And general legal principles, such as the contract law doctrine of offer and acceptance, would tend to support the conclusion that states may withdraw their applications until Congress actually calls the convention (or, perhaps, until the magic two-thirds number is reached).

Note, however, that if Congress wanted to call a convention today (which it most certainly does not), it could easily do so. First, Congress might disagree with my (admittedly cursory) analysis and conclude that the requisite number of states have in fact applied for a convention. Second, Congress might find that it has discretionary authority to call a convention under Article V even under circumstances when it is not compelled to do so. Article V, after all, does not say anything about when Congress may call a convention, only when it must.

Indeed, there would seem to be little doubt that Congress, or for that matter the states themselves, may call a convention even if the technical requirements of Article V are not (or arguably not) satisfied. The Washington Peace Conference of 1861, called to consider potential constitutional amendments to avoid civil war, was not initiated by Article V applications. If a convention does not qualify under Article V, however, it presumably could not propose amendments directly to the states, but only make recommendations to Congress, which would then have to use its own Article V power of proposal. As Professor Natelson explains, this is what happened in the case of the Washington Peace Conference.

House Counsel on the Lerner Contempt

The House Counsel has issued this memorandum addressing the argument that Lois Lerner cannot be held in contempt because the Committee on Government Oversight and Reform failed to follow the proper procedures in overruling her objections. The memo provides additional factual detail regarding the committee’s actions and communications with Lerner and her counsel. House Counsel states that “the factual record overwhelmingly supports the conclusion that Ms. Lerner would ‘ha[ve] no cause to complain’ if she were to be indicted and prosecuted under 2 U.S.C. § 192 because she was ‘not forced to guess the [C]ommittee’s ruling’ on her Fifth Amendment claim.” Memorandum at 12. Thus, “we think it highly unlikely a district court would dismiss a section 192 indictment of Ms. Lerner on the ground that she was insufficiently apprised that the Committee demanded her answers to its questions, notwithstanding her Fifth Amendment objection.” Id. at 15.

House Counsel also points out that there is no reason at all to believe that the alleged infirmities in the committee’s procedures would have any bearing on a civil enforcement action. Id. at 18-19.

Senator Johnson’s Obamacare Standing

 

Update: oops, I have been reminded that the Tenth Circuit in Schaffer v. Clinton, 240 F.3d 878, 885-86 (10th Cir. 2001), rejected the D.C. Circuit’s Boehner v. Anderson conclusion and held that a member of Congress lacked standing to complain of a pay increase that allegedly violated the Twenty-Seventh Amendment. Schaffer isn’t cited in DOJ’s motion to dismiss either.

 

Senator Ron Johnson (R-Wisc.) has brought a lawsuit against OPM in the U.S. District Court for the Eastern District of Wisconsin in which the senator, along with one of his aides, challenges OPM’s regulations related to congressional health insurance options available under the Affordable Care Act. Specifically, the plaintiffs argue that OPM lacked the authority to grant employer subsidies for congressional health insurance purchased on the exchanges under Section 1312 (d)(3)(D) of the ACA. They also maintain that OPM improperly shifted to Members of Congress the burden of determining which legislative employees qualify as employees of “the official office of a Member of Congress” within the meaning of Section 1312 (d)(3)(D).

Andrew McCarthy has called this lawsuit “frivolous,” saying “it is no more constitutionally proper or practical for a legislator to sue the president over a public policy dispute than for the president to violate valid laws.” But while the suit may be “frivolous” in the sense that it is not a worthwhile use of the senator’s or the court’s time, it is not legally defective simply because the senator’s motivation is to win a political or public policy dispute. If, for example, Marbury was motivated by the desire to score political points against the Jefferson administration rather than by a genuine ambition to become a justice of the peace (which may have been the case, for all I know), this would not have been grounds to reject his case. At least I don’t think so.

The legal question is simply whether Johnson and/or his aide have suffered a personal injury that can be redressed in court. This is not a case, like Raines v. Byrd, 521 U.S. 811 (1997), where individual members of Congress are attempting to vindicate an institutional injury suffered by the legislative body as a whole.

The Justice Department, representing OPM, argues that the plaintiffs lack standing because they are not claiming any personal injury. For example, they “are not contending that the challenged OPM regulations have any adverse effect on their own health coverage.” DOJ Motion to Dismiss at 7 (emphasis in original). Instead, their “suit seeks to narrow the health-coverage options and benefits made available to themselves and other Members of Congress and congressional employees.” Id. (emphasis in original). How, DOJ in essence asks, can Senator Johnson have been injured by receiving a financial benefit such as an employer subsidy?

This is a fair question, but I can’t help noticing that the Justice Department failed to cite the only case (to my knowledge) to answer this question in a virtually identical context. In Boehner v. Anderson, 30 F.3d 156 (D.C. Cir. 1994), a group of members and congressional candidates, led by the future Speaker of the House, challenged certain congressional pay increases as contrary to the Twenty-Seventh Amendment. As in the Johnson lawsuit, the defendants argued that Boehner lacked standing to sue because his complaint was really a generalized about the conduct of government. Besides, the Secretary of the Senate (one of the defendants) added sensibly, “an increase in pay is not an injury.”

Boehner, however, argued that in his case it was an injury because his constituents would think less of him for receiving a financial benefit to which he was not legally entitled. This argument, essentially identical to Johnson’s, was accepted by the D.C. Circuit, which stated: “We do not think it the office of a court to insist that getting additional monetary compensation is a good when the recipient, a congressman, says that in his political position it is a bad.”

We will see if the federal court in Wisconsin follows this line of reasoning. If it does not, Senator Johnson still may be able to prevail on standing with regard to the “official office” designation issue. Here Johnson contends that OPM has unlawfully punted the responsibility for determining who works for an “official office” within the statutory meaning. This places a burden on the individual member to make this determination, without any guidance from OPM, and results in identically situated staffers being treated differently.

DOJ’s arguments against standing on this issue strike me as less than impressive. The primary argument is that the necessity of determining which employees work for an “official office” results from the ACA itself, not from OPM. That’s true, but it is OPM that has taken a legal determination that should be made by the agency and made it into an arbitrary choice to be made by members.

DOJ also argues that Johnson does not really have to undertake the burden of making this decision because he has the option of delegating it to the Senate’s administrative office. But that’s just another way of making the decision. Johnson knows what determination the Senate administrative office will make. If that is the legally correct determination, then OPM should have made that determination in the first place. Instead, OPM is essentially giving members the option to decide whether or not they want to follow the law. Since following the law will impose a cost on a member (particularly in comparison to another member who may decide not to follow it), that does seem to place an individual burden on each member.

Can Lois Lerner Skate on a Technicality?

Updated: Mort Rosenberg’s response follows

On a snowy day, what could be better than snuggling up with some 1950s Supreme Court cases and getting deep into the technicalities of congressional contempt procedure? If your answer is “just about anything,” you would not have enjoyed John Filamor’s going-away party.

As it happens, I had a reason for doing this. My friend and congressional legal expert extraordinaire Mort Rosenberg, with some assistance from former House Counsel Stan Brand, wrote this memo last week to Elijah Cummings, ranking member of the House Committee on Oversight and Government Reform (COGR). The memo concludes, based on Supreme Court precedent, that Lois Lerner cannot be held in contempt for her refusal to answer questions at a recent COGR hearing, explaining that “at no stage in this proceeding did the witness receive the clear rejections of her constitutional objections and direct demand for answers nor was it made unequivocally certain that her failure to respond would result in a criminal contempt prosecution.”

For the reasons set forth below, I don’t think the Supreme Court cases relied on by Rosenberg and Brand support their conclusion. It is unlikely, in my opinion, that Lerner could escape criminal conviction on the grounds set forth in their memo. Moreover, as far as I can tell there is no basis for the suggestion that Lerner would be able to successfully defend a civil suit on this basis.

Perhaps more importantly, I do not think it appropriate for Representative Cummings to endorse this position. Lerner has skilled defense counsel who is more than capable of deciding whether it is in her interest to raise this hyper-technical defense should she be charged with criminal contempt. There are legitimate institutional reasons why Cummings might object to holding Lerner in contempt, but this is not one of them.

Continue reading ‘Can Lois Lerner Skate on a Technicality?’ »

Chris Donesa on the SSCI/CIA Dispute

Chris Donesa, former chief counsel to the House Permanent Select Committee on Intelligence, provides this thoughtful and balanced analysis at Lawfare of Senator Feinstein’s charges against the CIA, raising three questions about the dispute.

Of particular interest is Donesa’s third question, which relates to why SSCI itself apparently violated its agreement with the CIA by removing certain documents, including drafts of the “Internal Panetta Review,” from the CIA facility without getting pre-clearance to do so. I agree with Donesa that Feinstein clearly, though implicitly, acknowledged such a violation. She claimed in her statement that the removal of the documents was lawful and in keeping with the “spirit” of the agreement (because the committee redacted the information that it believed the CIA would legitimately be able to protect). The corollary is that SSCI violated the letter of the agreement, and I doubt that the CIA would agree that SSCI complied with the agreement’s spirit either.

I would note here that Feinstein doesn’t say whether she authorized the committee staff to remove the documents. But she is clearly saying that the staff acted properly because “there was a need to preserve and protect the Internal Panetta Review in the committee’s own space.” If they had not done so, she suggests, the CIA might have removed the committee’s ability to access the documents at the CIA facility. Moreover, the CIA might have destroyed the documents altogether.

Donesa finds the last suggestion, in particular, rather implausible under the circumstances, and this would be my first reaction as well. But the most important point is that Senator Feinstein is accusing the CIA of being such a rogue agency that it cannot be trusted to avoid even the reckless and unlawful step of destroying evidence specifically known to and demanded by its oversight committee.

So the question I would raise is whether Feinstein’s charge should be viewed as merely the sort of hyperbole we have come to expect in the back and forth of Washington bickering, or whether it should be taken seriously. And if the latter, what is the proper mechanism for adjudicating such an extraordinary charge?

But Other Than That, the CIA Has Been Very Cooperative With SSCI’s Investigation

Senator Feinstein’s bill of particulars against the CIA, set forth in her speech this morning:

Between 2002 and 2006, the CIA failed to brief the Members of the Senate Select Committee on Intelligence, other than the Chairman and Vice Chairman, regarding its detention and interrogation program.

In 2007 the CIA destroyed videotapes, over the objections of White House Counsel and the DNI, of certain enhanced interrogations.

In early 2009, SSCI staffers provided an initial report indicating that “[t]he interrogations and conditions of confinement at the CIA detention sites were far different and far more harsh than the way the CIA had described them to us.”

After SSCI initiated a full investigation, SSCI agreed, at the request of then- CIA Director Panetta, that it would review CIA documents relevant to its investigation at a secure CIA facility in Northern Virginia. A process was agreed to under which SSCI would be provided with a “stand-alone computer system” that would not be accessed by CIA personnel, other than IT, without SSCI’s permission.

The CIA sent up a laborious and expensive document review process under which every responsive document was reviewed by outside contractors to make sure that SSCI did not receive documents that were either beyond the scope of its requests or potentially subject to a claim of executive privilege.

Beginning in mid-2009, the CIA began producing documents, eventually running into millions of pages, without index or organizational structure, a “document dump.”

SSCI asked the CIA to provide an electronic search tool so it could sort through these documents.  The CIA provided this tool, and SSCI staff used it to identify important documents, which they would then print out or copy to a separate folder on the computer. Eventually the staff identified thousands of such documents in the committee’s secure space at the CIA facility.

In May 2010, SSCI staff noticed that certain documents that had previously been made available for their review were no longer accessible on the SSCI computer at the CIA facility. It later turned out that CIA personnel, without the knowledge or approval of SSCI, had removed 870 documents or pages of documents in February 2010 and another 50 in May 2010. These actions violated the written agreements between SSCI and the CIA and represented the exact sort of CIA interference in the investigation that SSCI had sought to avoid at the outset.

When confronted by SSCI staff, CIA personnel first blamed IT contractors. Then the CIA stated that the removal of the documents was ordered by the White House. This claim was denied by the White House.

The White House Counsel and the CIA gave Senator Feinstein a renewed commitment that there would no further unauthorized access to the committee’s network or removal of CIA documents already provided to the committee. On May 17, 2010, the CIA director of congressional affairs apologized on behalf of the CIA for the removal of the documents.

Sometime during 2010, SSCI staff located draft versions of the “Internal Panetta Review” among the documents made available to the committee at the CIA facility. These documents reached the same conclusions as the committee did with regard to certain “troubling matters” uncovered in its investigation. These documents were identified by SSCI staff as important and were printed out and electronically copied in accordance with their normal practice.

Some, though not all, of the IPR documents were marked as “deliberative” or “privileged.” This was not considered noteworthy because many documents provided to SSCI by the CIA have such markings. Senate Legal Counsel has also advised that these claims of privilege are not recognized by Congress.

Sometime after SSCI staff identified and reviewed the IPR documents, most likely in 2010, the CIA removed access to the vast majority of them. This violated both the CIA’s initial agreements and later assurances by the White House and the CIA that there would be no further removal of documents.

In December 2012, SSCI produced a 6,300 page study of the CIA’s Detention and Interrogation Program and sent it to the CIA for comment.

On July 27, 2013, the CIA provided SSCI with its response. Although the CIA agreed with some parts of the SSCI study, it disagrees with and disputes important parts of it. Importantly, “[s]ome of these important parts that the CIA now disputes in our committee study are clearly acknowledged in the CIA’s own Internal Panetta Review.”

After noting the disparity between the official CIA response and the draft IPR, SSCI staff “securely transported a printed portion of the draft Internal Panetta Review from the committee’s secure room at the CIA-leased facility to the secure committee spaces in the Hart Senate Office Building.” This complied with the spirit (if not the letter) of SSCI’s agreements with the CIA because SSCI redacted from these documents the kind of information (names of CIA non-supervisory personnel and names of specific countries in which CIA detention sites were operated) that the CIA was trying to protect. There is no legal prohibition against what SSCI staff did.

Given the CIA’s past practice of removing or destroying information related to the detention and interrogation program, “there was a need to preserve and protect the Internal Panetta Review in the committee’s own secure spaces.”

In late 2013, Senator Feinstein requested a final and complete version of the IPR be provided to the committee. In early 2014, the CIA refused this request, citing the deliberative nature of the document.

On January 15, 2014, CIA Director Brennan informed Chairman Feinstein and Vice Chairman Chambliss that, without prior notification or approval, the CIA had conducted a search of the SSCI computers at the CIA facility. This search was conducted in response to indications that SSCI staff had already obtained access to the IPR. The CIA did not, either prior to the search or thereafter, ask SSCI how it acquired information regarding the IPR. Despite this, someone has made anonymous allegations in the press “that the committee staff had somehow obtained the document through unauthorized or criminal means, perhaps to include hacking into the CIA’s computer network.”

On January 17, 2014, Senator Feinstein wrote to Director Brennan objecting to any further CIA investigation regarding the activities of SSCI staff due to separation of powers concerns about the search and any further investigation. She followed up with a letter on January 23 asking 12 specific questions about the CIA’s actions. The CIA has refused to answer these questions.

Senator Feinstein believes that the CIA’s search may well have violated basic separation of powers principles, the Speech or Debate Clause and the Fourth Amendment, as well as the Computer Fraud and Abuse Act and Executive Order 12333, which prohibits the CIA from conducting domestic searches or surveillance. Senator Feinstein has demanded an apology from the CIA and a recognition that the search was inappropriate. She has received neither.

The CIA Inspector General has initiated an investigation of the CIA search and has referred the matter to the Department of Justice for possible criminal investigation.

Senator Feinstein has also learned that the CIA’s acting General Counsel has “filed a crimes report with the Department of Justice concerning the committee’s staff actions.” This apparently took place after the IG made his referral to the Justice Department. Senator Feinstein believes that there is no legitimate reason for the acting General Counsel (who she notes was heavily involved in the activities covered by the committee’s study of the detention and interrogation program) to have taken this action. She “view[s] the acting general counsel’s referral as a potential effort to intimidate this staff.”

She says “this individual is sending a crimes report to the Department of Justice on the actions of congressional staff—the same congressional staff who researched and drafted a report that details how CIA officers—including the acting general counsel himself—provided inaccurate information to the Department of Justice about the program.”

Andrew Johnson, the New York Times and the Public Debt Clause

After a mere two and a half years, the Treasury Department has produced documents responsive to my FOIA request. As you may recall (ok, you probably don’t recall), I asked Treasury to produce “[a]ll documents that contain, discuss, refer or relate to any legal opinion or analysis by the Treasury Department General Counsel, or any attorney thereof, of Section Four of the Fourteenth Amendment (also known as the Public Debt Clause), or any application or potential application of Section Four to the statutory debt limit.”

This seemed to me to be a pretty narrow request and, as it turns out, Treasury identified a mere 755 pages responsive to my request. It released 432 pages, some of which were redacted, mostly consisting of printouts of public materials like newspaper articles and transcripts of news programs or congressional hearings. You can peruse the whole thing here.

The remaining 323 pages (aka the good stuff) were withheld in their entirety.

Despite its best efforts, though, Treasury did provide a few interesting tidbits. It produced a number of pages consisting of materials (cases, law review articles, etc.) that were apparently considered relevant to the legal analysis of the Public Debt Clause. Today I want to focus on one of these documents (found at page 386 of the production), which is a New York Times editorial dated December 11, 1868.

The NYT was very upset by a proposal made by outgoing President Andrew Johnson that would have altered the terms on which the large national debt incurred during the Civil War would be repaid. Johnson was apparently proposing that the interest payments (at six percent) required on the bonds be used instead to reduce the principal. The NYT responded:

Coleridge says “a knave is only a roundabout fool.” Mr. Johnson illustrates the doctrine. What does he think he gains by his talk about using the interest to pay the principal? Why does he not propose, openly and without circumlocution, to repudiate the debt wholly and completely? Applying the interest to reduce the principal is simply confiscating the interest and using the amount of which the creditor is thus robbed toward paying the debt. The interest is as much due the creditor as the principal; and to talk about withholding the one, to pay the other, is to talk nonsense, and very dishonest nonsense at that.

Ah, the good old days of civility in politics. But what does this have to do with the Public Debt Clause? Well, despite the NYT’s virulent opposition to Johnson’s idea, there is no suggestion in the editorial that the proposal would be unconstitutional or, more specifically, that it would violate Section Four of the Fourteenth Amendment, which had been ratified mere months earlier (July 9, 1868).

Of course, an omission in a NYT editorial will bear only so much weight. But if there is no evidence that anyone at the time thought Johnson’s proposal, which appears to amount to a partial repudiation of the debt, violated the Public Debt Clause, it is hard to to give credence to the far more aggressive reading of the Clause now advanced by Professor Epps and others in connection with the statutory debt limit.

Good catch, nameless Treasury Department lawyer. Too bad your department’s penchant for secrecy prevents you from receiving your due.